University of Alberta
The (Un)Usual Body: Foundational Transphobia in Psychiatry, Law, and Citizenship
by
Lane Robert Mandlis
A thesis submitted to the Faculty of Graduate Studies and Research in partial fulfillment of the requirements for the degree of
Doctor of Philosophy
Department of Sociology
©Lane Robert Mandlis Fall 2011 Edmonton, Alberta
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1+1 Canada Dedication
For Moyra, who has helped me to find the strength and the courage to pursue the changes that I needed to make, pushed me to think, write, and live differently, inspired me, and loved me through it all;
For Kali the fierce and compassionate;
And for Loki the communicator, the trickster, and the grey;
To you I offer this work, my gratitude, and my love. Abstract
Trans, following the work of Michel Foucault, deserves a genealogy that unveils some of the practices of gendering within psychiatry, law and citizenship discourses. This thesis examines an intersection between these discourses that is most clearly visible in the case of what has been called the transsexed body, the transsexual body, the transgender body, or trans body. I begin by tracing a previously unwritten history of trans embodiments in psychiatry from Imperial
Germany through to present day Canada. The incorporation of psychiatry within law offers an important source of practices of gendering citizens. Through an examination of Canadian legal understandings of trans bodies, differences between the processes of homophobia and transphobia are explored in order to make clearer practices within law that produce trans bodies as disingenuous, deceitful, and fraudulent. In this way, law reifies practices of gendering that produce discrete and insular categories of sex that preclude trans bodies. These initial groundings in psychiatry and law are brought to bear on citizenship practices, as demonstrated through a case study of the Canadian passport application process. Through these examinations, the disavowal of the mutability of the body, as embodied by the slippage or movement between sexes of the trans body, becomes a clear sticking point in struggles for equality. The conclusion thus argues for a trans activism that functions at the level of process and is informed by this thesis' genealogical perspective. Acknowledgements
First I would like to thank my supervisor - Rob Shields - for his unwavering support for a multi-faceted transdiscipUnary research project so removed from his usual field of study, for assisting me in seeing through the clouds of confusion, and for remaining a strong ally to the end.
I would also like to thank Lise Gotell for offering excellent and supportive advice throughout my learning and writing process, for pushing me to greater depths and clarity, and especially for her friendship and support within the academy and beyond.
My thanks also go to Pirkko Markula, who graciously and patiently supported me from the beginning of my specialisation work through to this project's end, who offered me engaging and important feedback, and who reminded me to return to the theory when I needed that reminder most.
Thank you to Robert Nichols for filling the role of examiner, as well as to Professor Mariana Valverde for accepting the role of external examiner. Your generosity and the depth of your engagement with my work is very much appreciated.
I must also thank the Department of Sociology for supporting me throughout this project. My thanks go to all of the students (above all the members of our writing group: Greg Bowden, Michelle Brady, and Tonya Davidson), faculty (especially Bryan Hogeveen who chaired my exam, Amy Kaler, and Steve Kent), and staff (particularly Cristeen, Flora, and Curtis) of the department and the University of Alberta who assisted me in thinking differently, expressing myself more clearly, and laughing more regularly, and who transitioned along with me. I also want to thank those faculty members who are no longer in the Department, but were important to more work: Charles Barbour and Sharon Rosenberg. In addition, I would like to thank the Graduate Program Coordinators, Lynn Van Reede and Nancy Evans for ensuring throughout the entire process that I remained on track.
I would also like to thank the Social Sciences and Humanities Research Council for supporting this research with a Doctoral Fellowship, and the Department of Sociology, the Faculty of Graduate Studies, the Graduate Students' Association, and the University of Alberta for providing travel funding and other financial support throughout my doctoral program.
Thank you also to Sophie, Karen & Seana, Lydie & Isabelle, Carol, Mickey & Arron, Tammy, Taryn, Nelson & Mel, Rod, Debra, Sean, Steve, Andrew, Jan, Joe, Karen, and all the other community members, chosen family, and friends who taught me so many different and important things about change and who supported me through my scholarly and personal transitions. Table of Contents
Phase 1: A Foundation to Disavowal 1 Chapter 1: Introduction and Research Questions 2 Language 7 Theory - Art - Everyday 16 (Im)mutability 25 Sex (Re)Assignment 31 Methods 33 Phase 2: Trans History and Psychiatry 40 Chapter 2: Nineteenth Century Sexology and Psychiatry 41 Imperial Germany 46 Sexology 55 Nineteenth Century Psychiatry 65 Degeneracy and Forensic Psychiatry 82 Chapter 3: Psychiatry post 1900 94 Twentieth Century Psychiatry 94 The American Psychiatric Association 111 Historical conclusion 119 Phase 3: Law and Immutability 122 Chapter 4: Trans Jurisprudence 123 Towards a Specifically Trans Strategy 125 Human Rights Mechanisms 132 Overview of usual legal strategy 150 Failure of legal strategy 156 Access to Healthcare 158 Intersectionality 164 Access to Documentation 168 Chapter 5: Human Rights, Transsexed Bodies, and Healthcare in Canada: What Counts as Legal Protection? 171 Introduction 171 The Process of Transphobia 172 Access to Healthcare 177 Social Effects of Legal Strategies 192 Conclusions 200 Phase 4: Citizenship and Everyday Life 203 Chapter 6: Citizenship through Documentation 204 The Passport 206 PPT 152 (03-09) 209 Ethnographic Story 1 215 Ethnographic Story 2 221 (Trans)Sex, (Trans)Gender, and the Residual 229 Ethnographic Story 3 244 Conclusion 248 Phase 5: Future Possibilities 250 Chapter 7: Conclusions, Interventions, and Directions 251 Conclusions 251 Interventions 259 Future Directions 262 Works Cited 267 The (Un) Usual Body
Phase 1: A Foundation to Disavowal
Transgender studies helps demonstrate the extent to which soma, the body as a culturally intelligible construct, and techne, the techniques in and through which bodies are transformed and positioned, are in fact inextricably interpenetrated. It helps correct an all-too-common critical failure to recognize "the body" not as one (already constituted) object of knowledge among others, but rather as the contingent ground of all our knowledge, and of all our knowing. (Stryker, 2006, p. 12)
1 The (Un) Usual Body
Chapter 1: Introduction and Research Questions
This dissertation is a synthesis, a process, through which seemingly disparate ideas come together in order to consider a larger phenomenon. Using
(largely Lacanian) psychoanalytic theory, legal theory, theories of the body and embodiment, and critical social theory; employing in depth case study, archival theory, and experimental writing, I use the transsexed body as the ground from which to reveal, examine, and break apart binaries such as private/ public and inclusion/ exclusion. I do this by considering in depth the passport as a social justice/ human rights issue that both relates to the transsexed body, and is informed by the transsexed body.
Through a consideration of the relationship between legal discourses, medical discourses, and citizenship discourses as they relate to the transsexed body and the passport, I seek to undermine the commonsensical assumptions that underpin social justice and human rights issues. In this way, this project functions as a genealogy in the Foucauldian sense, by using critique in order to render the discourses, practices, and events that are taken for granted problematic, difficult, and dangerous (Foucault, 1994). Following Viviane Namaste's (2005) call to move trans theory and activism away from mere calls to identity and identity politics, I consider social justice and human rights from a different perspective.
By moving away from understanding the transsexed body as solely a sight of specific identity embodiment, I do not wish to elide the specificity of the transsexed experience, but I also do not wish to focus on it. Instead, I propose to
2 The (Un) Usual Body use the transsexed body as a lever, as a fracture point in social justice and human rights discourses.
Throughout this dissertation, I suture together seemingly disparate threads of theory and thought. Connecting and exposing legal, medical, and citizenship discourses and the transsexed body opens these discourses to alternate critical readings. These connections also make explicit the ways in which the "regimes of practices" that produce, constrain and encompass the transsexed body are constituted by multiple processes (Foucault, 1994). Inflected by notions of social justice, human rights, and inclusive/exclusive discourse, I bring abstract, dense theoretical concepts to play in (extra)ordinary circumstances, experiences, and spaces in order to make visible the ways in which these encounters establish truths about sex and bodies.
By using the transsexed body as a point of liminality, as a point of beginning, and as a point of grounding, this project opens up new possibilities and avenues of discussion that move between and across commonly accepted binaries and boundaries. Instead of an examination of an unusual phenomenon, this dissertation functions to understand the transsexed body as a(n) (un)usual body, citizen, and space. In this way, the transsexed body functions as a site of possibilities of cultural, legal, and theoretical productions. Taking positions that are at times both informed by, and at odds with established trans theory, political theory, feminist theory, poststructural theory, and queer theory, this project aims to produce new opportunities, new avenues of inquiry, new lines of thought, and new possibilities; and in that aim, this project functions as a critical trans theory.
3 The (Un) Usual Body
Following Susan Stryker's (2006, p. 3) argument: "Ultimately, it is not just transgender phenomena per se that are of interest [in transgender studies], but rather the manner in which these phenomena reveal the operations of systems and institutions that simultaneously produce various possibilities of viable personhood, and eliminate others", this project examines seemingly disparate and unique practices together as a means of discussing trans theory and the transsexed body outside of identity and experience. In working across these practices, theories and identities, I engage in transing them. Transing operates as a movement across discourses; a movement that requires a cutting and suturing in order to transform.1 Transing differs from other forms of interdisciphnarity in that it does not attempt to map one discipline onto another, or to combine two disciplines by working between them; transing cuts a portion of one discipline from its moorings and stitches it to some other cut-out portion in order to produce something different from the pieces. It is the notion of marking sections, cutting them free of their usual context and bringing them together in decidedly different and unique ways that allows transing the possibility of producing different and unique results.
While identity and experience must be included in conversations that attempt to consider the transsexed body as a grounding point, it is my argument that studies that use identity and experience as the sole perspective miss the sociality of such positions, and elide the hybridity and complexity of people who inhabit such bodies. I am not in disagreement with those who might argue that
1 My usage of transing was seeded by Susan Stryker's closing remarks at the TransSomaTechnics: Theories and Practices of Transgender Embodiment Conference held at Simon Fraser University, Vancouver BC, May 3, 2008.
4 The (Un) Usual Body critical discussions of identity are important because critique can promote change through empowerment; as Stephanie Taylor (2001, p. 327) argues: "A critical analysis can aim to raise awareness and legitimize what was previously denied or negatively valued." My desire to move away from a concentration on identity is fuelled by an understanding that the discourses within which the bodies of transsexed people operate are many and varied, not all of which are centered on the trans-ness of their bodies. The centring of trans-ness functions to erase the hybridity with which transsexed people (as is the case with all people) operate and with which discourses of authority (such as medicine, psychiatry, law, and governance) operate.
Moreover, in taking seriously Foucault's (1995) notion that institutional and discursive constraints function to both produce and limit particular identities and experiences, I need to examine the ways that these discourses and identities interact, and inform each other. As Jane Flax (1992, p. 455) argues: "Unless the entire discursive field (and each subject's unconscious) is changed, these categories will continue to generate particular forms of subjectivity beyond the control of individuals, no matter how freely the subject believes s/he is playing with them." In this way, identity-based research is limited by the discourses in which it operates. Moreover, identity-based research can then be seen as reifying the discursive fields thereby solidifying the identities examined.
Understanding ways in which transsexed bodies are subjected helps to understand ways in which these bodies might function as levers to initiate change in the discursive field. In this way, I am not suggesting that bodies are either fully
5 The (Un) Usual Body determined by discursive and institutional structures or free agents able to resist discursive and institutional constraints, nor am I seeking to play with the terms themselves, but, instead, to understand them as being involved in and constitutive of larger discursive fields, regimes of practices, and programs. The interaction of different discourses on the transsexed body opens possibilities for meaningful social change through potential shifts in these fields, regimes, and programs. Such change may be brought about by questioning how these mechanisms come to bear on the body, and how they are produced as natural or self-evident (Foucault,
1994). As Jean Carabine (2001, p. 269) notes:
Discourses are also fluid and often opportunistic, at one and the same time, drawing upon existing discourses about an issue whilst utilizing, interacting with, and being mediated by, other dominant discourses (about, for example, family, femininity, morality, gender, race, ethnicity, sexuality, disability, and class, etc.) to produce potent and new ways of conceptualizing the issue or topic.
From this understanding, I wish to construct a net out of forms and articulations.
Understanding the body as a form that sustains publics, institutions can also be understood as regimes that are embodied; and through these new understandings comes a potential for institutions, bodies, and publics to be understood differently.
By explicating ways in which medical and legal discourses are grounded in an understanding of sex as a discrete binary pair immutably determined at birth
(an understanding that is a requirement of citizenship discourses), this dissertation functions as a link between 'abstract' theoretically informed concepts that are seen as appropriate to academia and grounded, street-level, lived experience. In this way, I show that theory is not merely an abstraction, but has lived effects. As
6 The (Un) Usual Body
Foucault (1994, pp. 253-254) has argued, "programs induce a whole series of effects in the real ... they crystallize into institutions, they inform individual behavior, they act as grids for the perception and evaluation of things." I further show that current reforms are insufficient to affect significant change in lived experience, precisely because they are not informed by a critical trans theory that pushes critiques outside of normative bounds, thus allowing for and producing non-normative changes. If we merely try to incorporate more people into the same old box, we end up with a very crowded old box. The approach that I am undertaking is not to expand the box, but to change its form entirely. Instead of asking why transsexed bodies are not allowed or included in the box, I ask why this box is the appropriate place for bodies to be placed at all. In asking this question, this project contributes to the building of critical trans theory.
Language
In order to discuss transsexed bodies, I must first discuss the ways in which I refer to them, and the ways that I do not. The language of trans is contested and malleable making understanding and communication difficult and divisive. Because terms come from specific historical backgrounds, their usage is imbued with particular meanings. As it is not possible to step outside of these contexts and use words in a 'neutral' fashion, it is imperative that words be chosen deliberately and carefully, in order to be mindful of their political effects.
7 The (Un) Usual Body
In this next section, I outline some of the words I have deliberately chosen, and explain some of the careful thought that has gone into these choices.
Transsexed versus Transsexual
The term transsexed is used throughout this work instead of the more commonly recognized transsexual for two specific reasons. First, it allows an unhinging of the transsexed body from the medicalization of the transsexual body.
The term transsexual comes from medical, specifically psychiatric, discourse. It comes about through the pathologization of sexual behaviors with the rise of sexual science in the latter half of the nineteenth century, and the shift to modern psychiatry initiated during this time, although the term itself is not specifically used until 1923 when sexologist Magnus Hirschfeld (1923, p. 14) uses the term
"seelischer Transsexualismus " (psychic or psychological transsexualism). The history of this pathologization of what are seen as sexual perversions in psychiatry is discussed in much greater detail in Phase 2. Instances where this explicit link with medicine or psychiatry is necessary, or where I am referring to someone else's work, may use the term transsexual or other terms.
The second reason that transsexed is used is that the "sexual" part of the term transsexual appears to increase confusion between sexuality and sex/gender, such that transsexuality or the transsexual is often thought to be a reflection of sexuality instead of a reflection of sex/gender. In this way: The "sexual" part of transsexual contributes to the conflation of the transsexed individual with the homosexual. It allows the blurring of the distinction
8 The (Un) Usual Body
between sexed or gendered embodiment and sexuality to be reified, and in doing so erases the specificity of transsex, replacing it with "sexual pathology"; thus, producing the transsexed person as morally insane, psychotic, or sick. In using the term "sexual pathology," I do not mean to suggest that homosexuality is pathological. I am referring to the historical construction of homosexuality as a sexual perversion that was understood medically as pathological. This is also the basis for current homophobic positions and behaviors, in which the perpetrators of homophobic acts, positions, or behaviors justify their homophobia through the discourses of perversion and pathology. (Mandlis, 2011, p. 16)
Interestingly, the same conflation of sex/gender with sexuality seen with the term "transsexual" is also true of the term "transgender", in that in some common usage transgender is considered to be a sexuality. It is my hope that using the term transsexed will function to prevent this slippage in a similar way to the term intersexed. While intersex is often still a relatively obscure term, when it is used, it is not thought to be a reflection of sexuality.
It is also important to note that I use the term transsexed in order to speak to a specific embodiment - that of the physically transitioned or transitioning body. While some people who are not physically transitioning may identify as transsexed (or as transsexual), I do not use this term to refer to those bodies that are not transitioning or transitioned. In this usage, the term refers to a body, not to an identity; an important political decision designed to deal specifically with issues around self-identification and other-identification.
9 The (Un) Usual Body
Trans
Krista Scott-Dixon (2006) uses the term trans as a larger umbrella term.
When speaking of the collection of theory that covers the transsexed body as well as other transgendered bodies, or when speaking to larger social issues faced by transsexed and transgendered bodies, I use the umbrella term trans. The term also functions as a more general term that can include those embodiments that may be temporary - such as drag - or in instances where it is unclear which more specific embodiment ought to be used. Umbrella terms allow for visible commonality, which holds promise; however, the use of umbrella terms denies and erases specificity in ways that are also problematic. In Susan Stryker's (2006, p. 14) words: 'The conflation of many types of gender variance into a single shorthand term ... holds both peril and promise'.
Nontranssexed
In keeping with Jamison Green's (2004) argument that positioning the transsexed body as the referential term places the lack in the nontranssexed body, rather than in the transsexed body, I use the term nontranssexed to refer to those bodies that are not. This is a productive and important intervention for this dissertation as a contribution to critical trans theory. It should be noted that the use of nontrans follows similarly from this definition as it relates to the above definition of trans. I use the term nontranssexed to refer to those people who are not transsexed in order to prevent the privileging of particular 'normal' biological
10 The (Un) Usual Body
signifiers, such as genitalia, chromosomes, or secondary sex characteristics as
implicating authenticity.
The use of terms such as "bio-(wo)men", "genetic (fe)male", or
"(fe)male-bodied" (to name but a few options) are problematic insofar as they
suggest that the transsexed individual is not really a man or woman or male or
female; a position that is actually transphobic, as it equates biology and/or
genetics with sex. By privileging a particular account of biology that renders the
transsexed body less real, less authentic than the nontranssexed body, the
transsexed body can be discounted. These terms also imply that the transsexed
individual has a problem in their mind, as an aspect of the body's biology is the
ultimate arbiter of their 'true' sex, thus reinscribing the transsexed individual as
mentally ill.
The term "cis-gender" (as well as the less often used "cis-sexed"), which
came into usage in the mid 1990s, has been suggested as a term for labeling those people whose gender identity or gender role is seen as appropriate for their sex
without using negative prefixes. Politically, it has been argued that this term promotes equality between the two groups, as both groups are then marked by a
label. However, this word does not depart from the privileging of the natally
assigned sex; neither does it function to level the playing field between transsexed
minorities and nontranssexed majorities.
Cis-gender, much like heterosexual, easily becomes an unnecessary term unless the minority term is being used, making it unlikely to promote equality. In this way cis-gender can be seen to function as a collocation: a repeated co-
11 The (Un) Usual Body occurrence between particular words that implicitly acknowledge an alternative
(Fairclough, 2001). The example of a collocation that Fairclough (2001) uses is
"paid work"; we need not speak of "paid work" unless we are explicitly marking that there is some other, less authentic, alternative such as "volunteer work" or
"domestic work." "Paid work" is the implicitly understood default of using the term "work." Similarly, one has a gender and is gendered; we would only need to refer to someone as cis-gendered in order to mark the transsexed body as not cis- gendered. Cis-gendered then is unnecessary because it is the default position; we could (and usually would) merely use the term gendered. In this way cis-gendered cannot be seen as marking the unmarked body; its sole purpose is to further mark the already marked body. Politically, contributions to a critical trans theory need to be aware of ways in which the privileging of nontrans pervades our speech, and actively write against such practices.
Transphobia
Jay Prosser (1998) defines transphobia as actions, behaviours or beliefs that are driven by an understanding (consciously or not) of the trans body as less real than the nontrans body. These actions, behaviours, and beliefs function as forms of violence, whether explicit or implicit, that are often thought to stem from fear, hence the use of "phobia." It is important to recognise that transphobic violence is not always malicious, intentional, or obvious; nor is it always perpetrated by non-trans people. For example, the privileging of a particular account of biology through the use of terms like "bio-(wo)man," as mentioned
12 The (Un) Usual Body earlier, is a form of transphobia that is most often enacted by people who are trans, trans supporters, or trans-friendly. Like many other social problems, transphobic violence is a complex social issue, with many forms, and it should not be reduced to a simple understanding of violence enacted by others.
Gender Identity Disorder
Gender Identity Disorder (GID) is a condition diagnosable under the
American Psychiatric Association's (2000) Diagnostic and Statistics Manual of
Mental Disorders (DSMIV-TR) under the category Sexual and Gender Identity
Disorders. In Canada (as well as in most countries around the world), diagnosis with this mental disorder is required to access physical transition treatments such as hormone therapy and surgery. Most Canadian provinces also subscribe to the
Canadian Professional Association for Transgender Health (CPATH) and the
World Professional Association for Transgender Health (WPATH) standards of care which are the recognized international guideline for medical intervention for transsexualism.
While the diagnosis is contentious, access to gender-confirming healthcare requires it. I argue in Phase 3 that when disorder is understood as a social impairment rather than an inherent flaw of an individual, diagnosis with GID should be understood as an appropriate and important medical intervention for some transsexed people. Trans legal scholar Paisley Currah's (2009, p. 253) critique of the denigration of the medical model is also instructive in this regard:
2 The draft of DSM V maintains this diagnosis.
13 The (Un) Usual Body
In the context of critiquing the medical model, it is important to keep in mind that this model also produces the category of "non-transgender" people as well. We must remember that the purpose of any pathologizing discourse is not simply to define the "sick," but also to describe and identify the "healthy," and to set the boundary between them.
Gender Identity/ Gender Expression
Gender identity and gender expression are the terms that are most often
used in legal and human rights discourses to discuss the protection (or exclusion)
of trans bodies. The term gender identity stems, obviously, from the medical
discourse with which transsexed bodies are coded as diagnostically mentally ill.
Gender identity is meant to refer to one's own internal sense of their own sex and
gender, their self-awareness that they are male or female (DSM-III, 1980). One
common misconception is that we can 'see' someone's gender identity, such that
if a person deemed male appears effeminate, then 'he' must have a female or
feminine gender identity. A second common misconception is that only trans
identified people have a gender identity. Every person has a gender identity, his
or her own sense of self, and this may not be apparent in exterior appearance. A
person's gender expression, his or her public facade, may reflect her/his gender
identity, as is the case for many people or it may not. A person may have a gender
identity that is male (he knows himself to be male), but may have a feminine
gender expression, such as an effeminate man. He may be heterosexual, or homosexual, or bisexual, or asexual. Gender identity and gender expression are
not in any way related to sexual behaviours, desires, or preferences. Both trans
14 The (Un) Usual Body
and nontrans identified people have gender identities and gender expressions;
both also have sexual desires, behaviours, and preferences, that might be
indicative of their sexuality, and might not.
A Note about Sexuality
Sexuality is often thought of unproblematically as heterosexual,
homosexual, or bisexual. These seem like easily identifiable markers; if a woman
is with a woman, or a man with a man, they are homosexual. If a man is with a
woman, they are heterosexual. If someone says that they are attracted to both men
and women, yet they are in a monogamous relationship with one person, we
sometimes allow them to remain identified as bisexual - only sometimes because
bisexuality is often caught in an untenable position as well (for examples of the
difficulties and erasures of bisexuality see (Angelides, 2006; Gammon & Isgro,
2006; Owen, 2003; Storr, 1999a; Storr, 1999; Bi Academic Intervention, 1997)).
Yet how do we make sense of trans bodies within these equations? Do we understand the female-to-male transsexed body as a man or as a woman? Is he homosexual if his male lover penetrates his vagina? Is he heterosexual if he uses a dildo to penetrate his female partner's vagina? What if he uses the neo-phallus surgically constructed for him? Is a transwoman who inserts her penis into her male lover heterosexual, or homosexual? If she prefers her female lover to strap on a dildo and penetrate her surgically constructed neo-vagina is she homosexual?
What if her female lover has to enter her anally because she has not had vaginaplasty - does that make her homosexual or heterosexual? And what if a
15 The (Un) Usual Body
transman has coitus with a transwoman, in whatever combination floats their
boats? Are they heterosexual because he is male and she is female? Or because
she is male and he is female? Or is heterosexuality restricted only to those who
also appear heteronormative, thus precluding any but an exceptionally passable trans couple from being heterosexual?
Moreover, as long as the slippage between gender expression, gender
identity, and sexuality is maintained, we will continue to hear people call a transwoman or an effeminate man "fag", or a masculine woman or a transman
"dyke." Yet none of these embodiments has anything to do with these pejorative terms that denote sexuality. What history is implicitly evoked within these terms that perpetuate this movement? How might we unpack these words so that the
slippage stops? At what point did these terms begin to slide into each other? And, how might we envision them differently?
Theory - Art - Everyday
Alexander Calder, one of the pioneering sculptors of the twentieth century, has been widely acclaimed for his mobiles and stabiles (Rose B., 1969). Calder
was an extremely prolific American artist who lived from 1898-1976, creating
tens of thousands of artworks in his lifetime. Born into a family of artists, he was
formally educated as a mechanical engineer, but went on to become a professional
artist working in painting, sculpture, model making and jewelry making. While
many of us have seen his work, and all of us have seen examples of his most
famous invention - the mobile - many have never heard of him. Calder maintains 16 The (Un) Usual Body a kind of 'private-publicity' similar to trans bodies through this (mis)recognition, making the theoretical use of his work that much more interesting.
Calder's mobiles have generated significant theoretical interest, and have
"become so famous that the stabiles tend to be overlooked" (Ragon, 1967, p. 4).
While Calder himself was always reticent to discuss his work (Gimenez, 2004;
Rose B., 1969), his creations offer an excellent theoretical opportunity.
Theoretically, the juxtaposition of Calder's two main styles of sculpture offers an interesting insight into the interplay between transsexed and nontranssexed bodies.3
In their apparently organic embodiment, Calder's artworks offer a platform from which to consider more obviously organic embodiments. I consider both Calder's mobiles: "A delicately balanced construction or sculpture of a type developed by Alexander Calder since 1930, usually with movable parts, which can be set in motion by currents of air or mechanically propelled" and his stabiles:
"An abstract sculpture or construction typically made of sheet metal, wire, and wood" (Webster's New International Dictionary, 1954 cited in (Rose B., 1969, p.
4), as analogous to bodies, in order to open up new ways of considering those bodies. I consider the two different modes together in order to make sense of the interplay between different bodies. The use of Calder's works as analogous to bodies functions as a theoretical foundation for this dissertation.
J While stabiles and mobiles comprise the two main styles of Calder's work, they are not his only genres. The hybrid creations called constellations that include both stabile and mobile elements are striking in that they could, within this particular theoretical understanding refer to transgendered bodies. As my interest in this project lies more specifically with the transsexed body, Calder's hybrids and transgendered bodies have not been more thoroughly considered.
17 The (Un) Usual Body
Stabiles can be understood to define the setting in which they are placed because of their size (Marter, 1998); as Spanish architect Josep Lluis Sert wrote about Calder's stabiles: "These pieces really take possession of the sites they are conceived for" (Sert, 2004, p. 79). The stabile is somewhat shocking due to its size and therefore it appears to speak for the entirety of the place in which it is situated. Unlike smaller art pieces that are somewhat defined by the space they are in, the size of the stabile allows it to define the space. Similarly, the transsexed body's mutability stands as its defining feature. It is important to note here that while this mutability is marked as a defining feature, it is also disavowed in a number of ways. But despite this disavowal, or perhaps because of it, the mutability is marked as the defining feature of this body. While other bodies are mutable, their mutability fades into the background and becomes an implicit, yet disavowed, feature of the body. So both bodies' mutability is disavowed, but in different ways with different results. What is important to consider at this time is that the disavowal of the nontrans body's mutability functions as a parallel of the smaller art piece that is seen as complimentary to the space, rather than definitive of the space.
Mutability is seen as an exceptional feature of the transsexed body. This understanding constructs transsexed bodies as unusual, and allows for an understanding of the nontranssexed body, the usual body, as immutable. By erasing the mutability of the nontranssexed body, the transsexed body's mutability sets it apart as the stabile's size sets it apart from other art works. The mutability, and by extension the sex, of the transsexed body can then be seen as
18 The (Un) Usual Body
its defining moment; a defining moment that functions as the entirety of the transsexed body in a way that nothing marks the entirety of the nontranssexed body.
The stabile appears to function in opposition to the mobile; "the stabiles
and mobiles are reciprocal; they are the obverse and reverse of the same medal"
(Ragon, 1967, p. 4). Jean-Paul Sartre (1963, p. 90) writes about the mobile:
"Sculpture suggests movement, painting depth or light. Calder suggests nothing: he captures and embellishes true, living movements. His mobiles signify nothing, refer to nothing other than themselves; they simply are, they are absolutes." In this way the mobile can be seen to function, much as the nontranssexed body, as the original, as the generic, as the universal, or as the unmarked. The mobile in referring to nothing but itself can be seen as a pure signifier, as an unmarked moment that functions to mark the difference of those that are marked, that are therefore not original or universal, that are different - stabiles.
The nontranssexed body functions in a similar manner. Its seeming lack of mutability calls attention to the mutability of the transsexed body. In marking the transsexed body with mutability, the immutability of the nontranssexed body can be understood as originary, as the original, the universal, the unmarked. This is
further reinforced by, and reinforces, the understanding of the transsexed body as having been nontranssexed at some prior point to its marking as transsexed. In this way, the mutability of the body is understood as non-original, non-pure, and non-universal. This codes the mutability of the body not only as something different, but as something morally suspect, and something insidious. If the
19 The (Un) Usual Body transsexed body began as an unmarked nontranssexed universal subject, then the marking of the body as transsexed suggests the possibility of any body being marked and therefore mutable. This generates fear of mutability, as a destroyer of the universal; a destroyer made all the more worrisome because every body is not only mutable, but actually must mutate over time.
Moreover, mobiles have not only been accepted, but have proven enormously popular, while Calder's stabiles have continually been relegated to a subordinate position. Calder has stated that his mobiles are popular because:
"When you see a thing move you know what it will do" (Calder quoted in (Rose
B., 1969), p. 24). However, Bernice Rose (1969, p. 24), director of the 1969 exhibit A Salute to Alexander Calder at the Museum of Modern Art in New York adds:
But it is also possible that since the movement gives the sculpture a life of its own, one responds to it as one responds to another living thing - directly, bypassing the difficulties of its content as a highly sophisticated work of art, taking delight in its humor. The stabiles have also been accepted, although with difficulty at times, perhaps because the spirit of play is very strong in everything that Calder does, but more probably because their strongly organic presence creates yet another direct, physical experience and response.
In this way the mobile can be understood as analogous to the nontranssexed body - one responds directly, bypassing the difficulties of its content - a content that we assume to know, but usually do not know, that of its sex. This assumption and direct response happens to facilitate the use of language
(in which English requires the use of gendered pronouns, thus requiring the
20 The (Un) Usual Body
assumption of sex/gender), as well as to protect our own sense of stability in
relation to our own sex/gender. The difficulty in accepting the transsexed body's
mutability can then be seen as a direct reflection on our own sex/gender, an
unease in relation to the mobility of sex/gender signifiers as evidenced by the
transsexed body's mutability. Moreover, this lack of stability exposes the
precariousness of the hierarchical construction of the binary; the privileging of
male over female can only occur if the boundaries between them are solid. Thus
the fear generated by the transsexed body is not merely of mutability, but of how
that mutability affects the hierarchical binary of sex categories. In this way the
transsexed body can be understood as analogous to the stabile; its strong organic
presence creates a direct physical experience and response, however there is an
unease about it. As the stabile seems somewhat precariously fixed to the ground,
precarious because of the appearance of its arrested movement, so too is the sex
of the transsexed body seen as precarious.
If the stabile stands as a counter-point to the mobile, in part through this
arrested movement, then the transsexed body's arrested movement can be seen as
a counter-point to the nontranssexed body's sex. In this case it is the apparent non-movement of the nontranssexed body that is seen as the natural movement
embodied by the mobile, and the apparent movement of the transsexed body's sex that approximates the arrested movement of the stabile. Precisely because the transition of the transsexed body occurs in public, yet not actually in the present, this 'movement' can be seen as the arrested movement of the stabile. In stating that the transition does not occur in the present, I mean that the 'movement' of the
21 The (Un) Usual Body body from being understood as one sex to the other occurs only with reference to the past sex and the future sex. It is not a 'movement' as such, but an arrested movement insofar as the present moment only captures the lack of movement, the past (arrested) or future (potential) movement. And this pertains not only to the idea of a fully transitioned body that appears to have moved discretely from one category to the other, but also to the movement that occurs as a slippage between the categories; the movement that occurs when one is seen as either or neither or both; the movement that is seen in the body that one cannot comfortably and finally categorise. All of these movements are a lack of movement in the present because the movement is only possible in relation to the understanding and recognition of a past or a future that is different than the present. In this way the trans body's movement is arrested or potential but never actually present.
While the stabile does not prevent the mobile's movement, the suggestion of movement in the stabile has an effect on our experience and understanding of the mobile's movement. The stabile's stability can be understood as a kind of movement, a future potential movement or a past arrested movement. Similarly, the trans body's sex or gender, as transitional, can be understood as a future potential movement or a past arrested movement. The trans body's sex or gender is then always in motion, as a stabile is also always in motion. The motion of the stabile appears unnatural in relation to the motion of the mobile; as the mobile's counterpart, as its assumed opposite, the motion of each must also correspondingly be assumed opposite. The mobile's movement, a natural motion
22 The (Un) Usual Body caused by wind, can then be seen as the counter-point to the stabile's arrested/ possible motion.
The temporal element is interesting because the mobile (or the nontranssexed body) is seen as occupying the present (and the natural), while the stabile (or the transsexed body) is seen as being either anachronistic or futuristic
(and therefore unnatural). Both the anachronistic and the futuristic promote fear in the present. The anachronistic produces anxiety over the possible eclipsing of the present; while the futuristic produces anxiety over potentialities and possibilities, and through this projection into the future eclipses the present. In either case, the present is erased by either a past that refuses to be past or a future that overshadows the now.
My seemingly counter-intuitive conception of the mobile as the nontranssexed body and the stabile as the transsexed body is deliberate. While the mobile was a transgressive and exceptional form of sculpture in its time, and the stabile could be understood as a return to classical form, theoretically, their reception offers an interesting opportunity. Both forms are (un)usual; both forms can be seen as transing sculpture, in that they offer exceptional interventions into our acceptance and understanding of how sculpture should be and what sculpture should do, yet they are both undeniably sculpture. The privileging of the mobile over the stabile occurred within a particular discourse (modernism), as the privileging of any form over another can only occur within the framework of a particular discourse. When discussing transsexed and nontranssexed bodies this is also true, it is just not often acknowledged. Modernism was not a fringe discourse.
23 The (Un)Usual Body
Similarly, the discourses in which the nontranssexed body is privileged are
mainstream, ubiquitous, and mostly unremarked.
Interestingly, Calder has said that mobiles and stabiles are not counter
points, but are more like salt and pepper: "My static statues do not complement
the mobile ones. These are able to appear more gay because of aerial character
and movement. My static and mobile statues are like salt and pepper. They can be
put together, or separately" (Calder quoted in (Bruzeau, 2004, p. 55)). The point
that Calder is making is that while many have taken mobiles and stabiles as a
binary pair, he did not construct them as such, nor intend them to be taken up in
this way. The point that I am making with this analogy is that transsexed and
nontranssexed bodies should not be taken as binary opposites either. What
Calder's artworks give us is a way to understand objects that are seen as
complementary, or oppositional, in another way. Both mobiles and stabiles
capture movement in ways that sculpture previously had not; in this way these
modes can be considered relational rather than oppositional. This opens up a
different way of understanding stabiles and mobiles, and through that interaction,
offers a potentially different way to understand transsexed and nontranssexed
bodies.
While Calder was adamantly opposed to theorising his art, his art's
influence on theory may be profound. In the same way, theory may be influencing
to art just as profoundly. One thing that using Calder's work to theorise transsexed bodies does is to show that the conceptual impact of art on theory or
theory on art exceeds the limits of either, and in so doing opens up new ways of
24 The (Un) Usual Body seeing, thinking and questioning. In discussing Calder's work as surrealist, Menil
Collection curator Mark Rosenthal (2005, p. 17), argues that: "Surrealist imagery often conjures up a state of becoming and transformation, with all things in flux.
It creates a place for discovery." It is through the creation of this kind of space that the theoretical implications of Calder's work interests me. Looking at the relationship of mobiles and stabiles allows a shift in perspective that opens up the potential to understand the imperfection and mutability of bodies to encompass all bodies rather than merely transsexed bodies. It is this shift in perspective, opening up a different way of seeing, that offers a direct challenge to the assumed stableness of nontranssexed bodies that will potentially lead to radical social change.
(Im)mutability
One of the most important foundational (mis)understandings of trans issues, whether in law, citizenship, or medicine, is both a simultaneous acceptance and refusal of the mutability of sex. This is a (mis)understanding because it is not possible to have a correct understanding given the disavowal of mutability and reliance on a discrete binary inherent in these discourses. Any understanding that occurs within a discourse founded on such a disavowal must then be a misunderstanding; however, within the limits of the discourse, this misunderstanding is also an understanding, possibly the only understanding that can occur without a drastic change, and therefore any understanding is a
25 The (Un) Usual Body
(mis)understanding, as it is both a misunderstanding and the only understanding
possible given the constraints.
Conceptions of mental illness and the medicalization of the transsexed
body are important in order to make sense of the ways that transsexed bodies get
constructed, (mis)understood, and dismissed. Moreover, law and governance
(mis)understands transsexed bodies mainly through the medical model, therefore
any discussion of legal issues, or citizenship must also include a discussion and
history of the psychiatrization of trans bodies in order to make sense of where we
are now, and to potentially change where we are going. The historical linking of
psychiatric interest in embodiments (mis)understood as deviant sexualities with
law through forensics makes this essential to recognizing the foundations of
contemporary trans embodiments in law.
Considering the complex ways in which affect and community function to
both produce and mediate crises of private-publicity functions to open further
lines of inquiry and possible avenues of change. Sara Ahmed (2004, p. 77) argues
that: "to announce a crisis is to produce the moral and political justification for maintaining 'what is' (taken for granted or granted) in the name of future
survival"; I am announcing a crisis in order to do precisely the opposite. I intend to use this declaration of crisis to produce the moral and political justification for changing the status quo. By analyzing the regimes of practices that presume to
govern transsexuality, a broader understanding of how these practices and programs produce and govern sex and gender more broadly emerges. It is through these practices and programs that sexing and gendering come to seem natural,
26 The (Un) Usual Body self-evident, and become an indispensible part of governmentality (Foucault,
1994).
Citizenship requires the registration of evidentiary documentation, such as birth certificates. Even though medical discourse suggests that sex is mutable, as evidenced by the psychiatric and endocrine studies of sex reassignment, there is a foundational understanding of sex within such discourses as fundamentally immutable - fixed at birth by the natal assignment. Legal discourses function in a similar way, which is understandable given their strong association and reliance on medical discourses for making sense of transsexed bodies. The ramifications of such an understanding play out in a myriad of situations and circumstances, thus suggesting that the only way to effectively interrupt institutional transphobia is through an explication - and at some point, hopefully, eradication - of the foundational transphobic position of such discourses.
Reading the words "gender identity" into discourses that are founded on the implicit (and denied) assumption that sex is determined (always and only) by the registered natal assignment does not interrupt the transphobic nature of medical and legal discourses. Moreover, such apparently inclusive changes function to elide the way in which discourses foundationally deny the mutability of sex, reify the binary conception of sex, and shore up the notion of the transsexed body as disingenuous, fraudulent, and deceptive.
While there has been an explosion of research and writing on transsexuals in the last 10 years, this work has almost exclusively focussed on identity and lived experience. Much of this work has been in direct response to Janice
27 The (Un) Usual Body
Raymond's (1994) Transsexual Empire: The Making of the She-Male, which was originally published in 1979, and was re-issued with a new preface in 1994. The original publication strongly influenced radical feminism, and was taken up extensively, and mainly positively, by feminist scholars. The reissuing of the book
(with a new introduction) has seen some positive reinforcement from some feminist scholars, but much more negative backlash from trans identified scholars and those feminist scholars whose work is more aligned with trans scholarship.
One of the difficulties of discussing "trans scholarship" is that it is not a singular monolithic discourse. The divisions between those writing more for or about transsexed versus transgendered issues are large and contentious; feminist scholars who embrace trans scholarship must also 'choose sides.'
Trans scholarship, in its current iteration, can be, somewhat, discussed as two separate camps. These are neither distinct nor completely separate, as there is slippage between the two; however, there is a large body of literature that tends to take up transsexed bodies for various purposes that usually centre on the lived experience of transsexed persons (examples include (Cromwell, 1999; Devor,
1997; Gehi & Arkles, 2007; Green, 2004; Namaste, 2000; Prosser, 1998; Rubin,
2003)), and another body that embraces gender queerness or ambiguity (meaning non-surgical trans bodies, or those bodies that appear to offer a slippage between gender and sex) while usually denigrating surgical bodies as dupes of some sort
(examples of this include transgender writers, poststructural feminist and queer theorists such as: (Butler, 1990, 1993, 2004; Feinberg, 1996; Halberstam, 1998,
2005; Nestle, Howell, & Wilchins, 2002; Noble, 2004; Valentine, 2007). What is
28 The (Un) Usual Body interesting about these works that take up gender queerness as the sexy radical of trans is that they tend to reiterate Raymond's (1994) argument, even though they do so under the guise of lauding trans as more interesting, important, and critical than nontrans embodiments. The surgical body is seen in many of these kinds of works as requiring of medical intervention merely because the person is somehow being duped. Transsexed bodies are not seen as requiring medical intervention due to the person's need to live their body in congruence with their identity, but rather as a need that arises simply out of the inability to navigate the social world due to restrictive administrative policies regarding document access, or rigid social norms around behaviour and appearance. Remove those policies and norms, and voila, no need for surgery for anyone! Yet transsexed literature has consistently denied this understanding of a merely social need for transsexed surgery, and argued that transition may be necessary for the person's own mental wellbeing or conception of self.
Regardless of the reception, Raymond's (1994) scathing attack on trans sexuality and physical transitioning has had lasting and profound effects on the visibility and theoretical impact of the transsexed body, particularly in feminist theory and women's/ gender studies, and in its reissuance has helped to fuel a massive increase in trans literature. Transsexed bodies have been codified,
4 While it may seem problematic and an overly sweeping generalization to categorize these works in this way (especially works by iconic theorists such as Butler and Halberstam), this distinction is important to make sense of how trans bodies are both included and excluded from consideration. It is not that these works explicitly state that people who transition are dupes; it is that there is an undercurrent to their overall argument that takes a very similar form as the one that explicitly proclaims transsexed people to be fools or victims of a bio-medical model that reinforces heteronormativity through the maintenance of a rigid binary of sex categories. This recognition is important because these are works that take up other trans bodies in positive ways, and are therefore understood as trans literature or as inclusive of trans.
29 The (Un) Usual Body medicalized, and pathologized in psychiatry, endocrinology, plastic surgery, urology, sexology and psychology; transsexed lives and experience have been examined, discussed, and explored in women's studies, gender studies, sexuality studies, history, anthropology, sociology, sport's studies, education, and
(auto)biography. While I am not moving entirely away from these issues, this study uses the transsexed body as the ground from which to open up discussions that centre not on transsexed experience as identity making, but on transsexed experience as indicative of larger social constructs, mandates, practices, and programs. In this way, this work contributes to a body of literature that might be called a critical trans theory (some examples of this body of literature include:
(Currah, 2009; Spade, 2008; Stryker & Whittle, 2006).
Transing offers a tension and movement between identity and theory.
Transing offers an acknowledgement that our bodily practices are rooted in identity, but informed by theory. The specificity of transsexed experience offers an opportunity to view taken-for-granted practices and programs with a different perspective. It is this perspective, informed by my reading of Calder, that allows me to speak across what is often seen as high theory and the street level experience of everyday cultural forms; thus providing for interventions at both levels. In this I plan to follow Foucault (1994, p. 257):
My general theme isn't society but the discourse of true and false, by which I mean the correlative formation of domains and objects and of the verifiable, falsifiable discourses that bear on them; and it's not just their formation that interests me, but the effects in the real to which they are linked.
30 The (Un) Usual Body
Sex (Re)Assignment
Taking on such a task as Foucault has outlined requires me to bring under
scrutiny many disparate practices, especially those that are usually unquestioned.
Sex assignment and reassignment seem to be obvious and unquestionable terms
when one is speaking about the transsexed body. Whether one accepts that natal
sex assignment is a socially constructed designation or a biological fact, sex
assignment is often taken as a given. A baby is born and the doctor declares it to
be either a boy or a girl5. Outside of any obvious intersex condition, this
declaration is given little (if any) thought.
Reassignment functions in much the same manner. While there are some
members of the trans community who eschew the term 'sex reassignment' in
favour of 'sex affirmation' (Heath, 2006), there is little contestation that the
transsexed person's sex has, at least legally, been reassigned. This seems a
commonsensical understanding, as the person had originally been assigned to one
category and subsequently was assigned to another; the easiest way to make sense
of this would be to consider them to have been reassigned. This understanding both opens up and forecloses possibilities in an interesting and paradoxical manner.
5 While it is true that a doctor is often not present at the birth of a child, and that the sex of a child is now often declared prior to birth by an ultrasound technician, the specter of the doctor does appear in all of these cases. The authority figure that supports all of the declarations made within the institution of medicine - whether that be in a hospital, at a home birth, or during an ultrasound exam - is the doctor. The technician's or midwife's ability to declare the sex of a child is underwritten by the spectral presence of the doctor's authority. Moreover, in cases where there is some ambiguity or uncertainty - such as when there is concern about whether the phallus is of sufficient length for the declaration of male, or where the clitoris is enlarged suggesting that there cannot be an easy declaration of female, then the doctor's authority quite explicitly comes to bear.
31 The (Un) Usual Body
Understanding sex to be assigned at birth opens up the possibility that the assignment is incorrect, or in some way flawed, or, minimally, that it is imperfect.
This can then be understood as a way in which sex as an assignment at birth has the potential for change, and is not a static, immutable biological fact. In this way sex as an assignment offers possibilities and potentialities. Reassignment, however, appears to foreclose on these potentialities and possibilities; the "re" of reassignment produces the spectre of the original assignment as primary. This lends an imperfection to the sex of the reassigned person; an imperfection that privileges the primary assignment over the new assignment. In so doing, the very notion of reassignment forecloses and disavows the mutability that it apparently marks.
How does this disavowal of mutability in the face of the reassigned body function to shore up taken-for-granted cultural forms and institutions? Rather than taking the reassigned body as the constitutive outside of cultural and juridical orders, my interest lies in exploring how the absorption and denial of the reassigned body (and the reassignment itself) function as powerful and necessary foundations for these orders. By exposing these foundations, I begin the more complex analysis of the regimes of practices and programs that produce and maintain sex and gender as stable binary pairings. In addition, a somewhat more practical goal of this exposition is the forming of strategies and tactics that will both impact the lived experience of transsexed people, while at the same time working to disrupt the foundations of transphobia through the construction of a critical trans theory.
32 The (Un) Usual Body
Methods
Radical social change requires first and foremost an understanding of where we are, and how we came to be there. As Carabine (2001, p. 275) states:
"discourses are historically variable ways of specifying knowledges and truths, whereby knowledges are socially constructed and produced by effects of power and spoken of in terms of 'truths.'" Understanding the transsexed body to offer the possibility of a crisis point in many of the discourses that produce it requires a willingness to subject these discourses to a test of failure. However, because discourses are constrained by language (Foucault, 1995), and because language produces the effects of discourses as reality (Phillips & Hardy, 2002), such a strategy will run counter to the accepted realities and authorities of these knowledges. Moreover, such a strategy runs the risk of de(con)structing itself, as any critique of these discourses can only occur within the constraints of language and discourse as well. By considering both the performative aspects of bodily presentations (be they individual bodies or institutional bodies) and the productive aspects of discourses I subject these contextualisations to deconstructive, destructive, and constructive tests.
The possibility of de(con)structing or (re)constructing is also an integral part of transing. Transing functions by working across theories rather than between theories. While interdisciplinarity can be understood as taking bits of each discipline and bringing them together, transdisciplinarity offers the potential to transcend the bits. Transing requires cutting and suturing. The cut creates space; it marks, bounds and contains. Suturing allows the seaming of the cuts in ways that previously were not thought possible. This project uses transing as a
33 The (Un) Usual Body means to examine, reveal, and transcend across an array of discourses. In this way transing offers the opportunity to scrutinise a larger picture in relation to the transsexed body. While each of the discourses I consider within this dissertation
(psychiatry, law, and citizenship) are worthy of intense individual scrutiny, it is the ways that each of them function independently and interdependently that interests me. It is how the particular discourses work that I am interested in; and most especially, it is the way that these discourses, in their differences, come to have similar functions.
Different historical contextualisations are analysed in phases 2, and 3 in order to find fracture points within the current contexts of psychiatry and English speaking Canadian law. The discourses of psychiatry and law offer potentially the most important sites of analysis for trans embodiments because of the authority each of them is granted in relation to social norms, institutions and administration.
This project, then, serves as a history of practice (Foucault, 1983); a history of the regimes of practices that take the transsexed body as their object in order to subject people through practices of sex. While the history of trans has usually been traced along with sexuality studies through sexologists such as Havelock
Ellis or Magnus Hirschfeld (Bullough V., 1987; Prosser, 1998; Sharpe, 2002), or through more recent developments around sex reassignment surgery and activism in the American context (Meyerowitz, 2002; Stryker, 2008), this work takes a different approach.
Phase 2 considers the language of trans as it is produced within a specifically psychiatric history. Using the current psychiatric understanding as the
34 The (Un) Usual Body beginning point from which to trace back the historical roots of the DSMIV-TR's
(American Psychiatric Association, 2000) discussion of Gender Identity Disorder demonstrates a direct linkage between that text and the work of Richard von
Krafft-Ebing (1886) Psychopathia Sexualis. While the treatment for GID has changed from Krafft-Ebing's time, the understanding of the disorder and its relationship to other disorders, behaviours, and norms has not.6 Krafft-Ebing, in addition to being the major contributor to the current understanding of sexual perversions within psychiatry, was also a very important player in the professionalization of psychiatry in Germany. As one of the preeminent psychiatrists of his time, Krafft-Ebing helped to shape the future of forensic and clinical psychiatry.
Psychiatry's coming together as a profession was combined with a confluence of social and political factors in the newly unified Imperial Germany, making this geographical region the most influential in terms of transsexed bodies to this day in the Western world. Phase 2 therefore focuses initially on Imperial
Germany as the major historical contributor to our current language and understanding of trans bodies, tracing both the terms used within medical contexts as well as what appears to be the initial slippage point between transsexuality and homosexuality. Because the inclusion of trans embodiments within psychiatry came about within a particular social and political context - the unification of
Germany and the movement of Prussian law throughout the unified country - this historical tracing spends a significant amount of time tracing the development of
Interestingly, there might be a case to be made that the treatment has not really been changed that extensively. I return to this idea in Chapter 3.
35 The (Un) Usual Body psychiatry in Germany at this time. Developments in psychiatry as a profession, combined with the rise in forensic psychiatry, produced an important context in which deviations from 'normal' embodiments became increasingly the purview of both law and psychiatry. Concerns regarding the well-being of the German Volk, and in particular the military class, were heightened by the increasing incidence of neurosyphilis. From these concerns arose the need to protect the military class - and hegemonic masculinity - from the ravages of a disease that appeared to stem from sexual promiscuity and 'unnatural fornication.' While these laws have been repealed, their imprint on modern western psychiatry continues in the form of the
"Sexual and Gender Identity Disorders" category in DSMIV-TR (American
Psychiatric Association, 2000).
Phase 3 shifts to a discussion of trans embodiments in Canadian law, and the legal difficulties that arise from encounters between transsexed bodies and law. This phase considers this relationship in an English-speaking Canadian context. Tracing through the way that trans bodies have been (mis)understood in
Canadian courts, this phase offers the potential to rethink the current activist position. In this way, historical context is used as a launching pad from which to find new possibilities to enact social change. The deconstructive effects of such fracture points (Derrida, 1976) allow for the opening up of these discourses; an opening that enables theorising that impacts daily lived experiences through an intense examination of legal strategy.
Strategically, activists have followed the gay and lesbian model of demanding specific named protection in human rights legislation. Unfortunately,
36 The (Un) Usual Body this action does not take into account the way that law functions, nor the potential for law to offer the substantive equality sought. Considering the historical relationship of Canadian law to liberalism, and the cycles of violence that accompany demands for formal inclusion in law, this phase suggests alternative actions for activists. By suturing notions of disorder, psychiatry, anti-liberal critique and legal strategy together, the importance of activism that takes into account the specificity of these relationships to trans bodies is revealed. In this way, the importance of a critical trans theory that uses transing as a basis of analysis becomes clearer, through the critique of current activist strategies that do not use such methods.
The strategic use of law moves neatly into the realm of government.
According to Foucault (1991), the shift from sovereignty to government can be characterized as a shift from law as instrument to law as tactic. Government then concerns itself with arranging things in order to lead "to an end which is
'convenient' for each of the things that are to be governed" (Foucault, 1991, p.
95). In this way the practices of sex become an indispensible part of governmentality, yet a part that appears inevitable, self-evident, and natural.
Within phase 4, the passport application process as a case study is designed to make sense of issues, not as generalizable knowledge, but as pointing, somewhat, to an institutional/ structural/ or collective issue. Moreover, the analysis of this specific event - the form - offers the opportunity to make visible a singularity at a point at which there is a tendency to invoke a universal constant,
"an obviousness which imposes itself uniformly on all" (Foucault, 1994, p. 249).
37 The (Un) Usual Body
Considering the body a form through which publics are sustained, studying a body's relationship to those publics carries the potential of understanding not only institutions and publics differently, but also privates and bodies differently. In this way, the examination of the transsexed body as a(n) (un)usual body offers insight not only into the transsexed body or the institutions that appear related to the transsexed body, but also into bodies and institutions that are not obviously related. In this way, this work functions as a history of practices with the different phases offering glimpses into the multiple processes that constitute our present understanding of sex through the analyses of such connections of causal multiplication (Foucault, 1994).
It is within citizenship contexts that the medical and legal relationships of the transsexed body come together into a constellation that has dramatic everyday effects. Ultimately, the purpose of this work is to begin a conversation, thereby opening up historical (mis)understandings, in an attempt to (mis)understand them differently. This form of critique is at the heart of a critical trans theory because it functions through the suturing of several important discourses in order to see the larger result of their influence.
Phase 5 is both a conclusion of sorts, as well as a beginning. The theoretical importance of the constellation of psychiatry, law and citizenship pervades the lives of transsexed people in many places and activities outside of the passport office, and this phase concludes the work by pointing out its limitations and suggesting more avenues of inquiry and activism. In this way, the overall work functions as a foundation or a beginning, rather than an ending; thus
38 The (Un)Usual Body the final phase of the dissertation brings this beginning to the forefront. Perhaps it is fitting in a work that uses transing as a foundation for inquiry that the conclusion not only bring the pieces together as a surgeon in an operating room might bring closure to the suffering from GID of a person who requires his particular skill; but that it also offers the launching pad from which to engage with the world differently, as the operating table is seen as a similar site of beginning for many transsexed people.
39 The (Un) Usual Body
Phase 2: Trans History and Psychiatry
... when we say that the present redeems the past itself, that the past itself contained signs which pointed towards the present, we are not making a historicist-relativist statement about how there is no 'objective' history; how we always interpret the past from our present horizon of understanding; how, in defining past epochs, we always - consciously or not - imply our present point of view. What we are claiming is something much more radical: what the proper historical stance (as opposed to historicism) 'relativizes' is not the past (always distorted by our present point of view) but, paradoxically, the present itself- our present can be conceived only as the outcome (not of what actually happened in the past, but also) of the crushed potentials for the future that were contained in the past. In other words, it is not only - as Foucault liked to emphasize, in a Nietzschean mode - that every history of the past is ultimately the 'ontology of the present', that we always perceive our past within the horizon of our present preoccupations, that in dealing with the past we are in effect dealing with the ghosts of the past whose resuscitation enables us to confront our present dilemmas. It is also that we, the 'actual' present historical agents, have to conceive of ourselves as the materialization of the ghosts of past generations, as the stage in which these past generations retroactively resolve their deadlocks. (Zizek S. , 2000, pp. 90-91)
He was insane. And when you look directly at an insane man all you see is a reflection of your own knowledge that he is insane, which is not to see him at all. (Pirsig, 1974, p. 100)
40 The (Un) Usual Body
Chapter 2: Nineteenth Century Sexology and Psychiatry
This phase provides a history of the present through the analysis of the
regimes of practices that presume to govern trans bodies. The importance of
history in opening up the future is evident in Sara Ahmed's (2004, p. 36)
observation: "The past is no longer past, but the theft of a different future." And,
as Zizek observes, in order to understand the way that trans is made sense of,
dealt with, and spoken about, here in the 'actual' present, it is necessary to look at
how it has been made sense of historically, and what potential presents and
futurities were foreclosed or allowed. This includes looking at historical
contributions to the language and understanding of trans that we use today. Aside
from the understanding of time as linear and progressive, a more radical, and
perhaps important reason for recounting this history, following Zizek, is the
potentialities opened up by the possibility of resolving these ghosts' deadlocks
differently.
If we are to understand ourselves as Zizek's ghosts, then 'our' actions
today must be recognized as extensions of the arguments that we had in the past,
as well as the deadlocks that we, as the ghosts of the future, will need to resolve in
some future moment. In this way, this phase serves not as a simple retelling of the
objective facts of history in reference to the trans body, but as a critical engagement with the past, in order to allow for the possibility of a different future.
As Ahmed (2004, p. 41) writes: "We need to think about how the past remains open in the present, such that the story of T am', or 'how did I come to be', is a
story that also opens up the future of the subject." Moreover, this future, as a
41 The (Un) Usual Body collective future, must be opened up so that the story of who 'we' are and how
'we' came to be also opens up the future of 'us' as people with trans embodiments.
Any historical understanding of today's trans bodies must take into account the different terms used at different times, by different people, and in different discourses. This accounting is important not to suggest a linear progression between the terms, or to posit the necessity or self-evident nature of this language, but rather to function as important singularities within the programs of conduct through which bodies are governed and their sex made 'true' or 'false'
(Foucault, 1990; 1994). The history of the term transsexual has been linked through early sexology and psychiatry into contemporary medical and legal discourses. Prior to this point, there are references to forms of hermaphroditism that may include bodies that today we would consider trans, however I am, for the most part, excluding these references as they have more in common with what we would today term intersex bodies. While other references to persons with identifications, behaviours, practices, desires, and appearances that we might today understand to be trans bodies appear prior to the advent of sexology
(Cromwell, 1999; Devor, 1997; Feinberg, 1996; Bullough V., 1987; Ulrichs,
1994), it is my argument that the discourses generated by psychiatry through sexual science have largely informed the most commonly accepted and used terms to refer to trans bodies today, particularly within legal contexts, making this historical starting point the most relevant to this project. In this way law cooperates with medicine generally, and psychiatry in particular, in order to
42 The (Un) Usual Body exercise power through the production of knowledge and 'truth' about the sex of bodies (Smart, Feminism and the Power of Law, 1990).
Moreover, while the behaviours, practices, desires, appearances, and identifications of people with cross-gender/sex embodiments have been considered within global anthropological work, my concern is more with the language and (mis)understanding that is used today, and the embodiments that these have referenced in their construction. While there have been many different historical, cultural, and political words used to reference a number of embodiments that might be considered to fall within the scope of trans,7 my specific interest lies in the lineage of the language that is used within medical, legal, and citizenship discourses in Canada today. These discourses rely heavily on the psychiatrization of trans-ness, such that the language found in the
American Psychiatric Association's DSMIV-TR (2000) is the most germane finishing point. The beginning point, or the historical lines that reach back from that document, stem definitively from Imperial Germany. Thus to understand the history of transsexuality it is important to understand the many significant changes occurring within Western psychiatry, as well as within the larger social and legal contexts at that time. Tracing the history of this language begins in
Germany in the late 1800s with the lawyer Karl Ulrichs. From Ulrichs's writings a path can be drawn through his contemporaries Kertbeny, Westphal, Griesinger, and Krafft-Ebing, to Emil Kraepelin and the American Psychiatric Association's
DSM I, II, III, and IV-TR, demonstrating both the shifts in language, as well as
7 Examples of these culturally specific embodiments include: the South Asian hijra, the Scythian Enarees, the Omani Xanith, the Manu in Tahiti, and Brazilian Travesti. These are given merely as examples, and should not by any means be considered an exhaustive list.
43 The (Un) Usual Body
what may be an important initial point of conflation between trans embodiments
and homosexuality.
The importance of demonstrating this initial point of fusion between trans
embodiments and homosexuality cannot be understated. In order to fully grasp the
disavowal of the mutability of the body introduced in Phase 1 requires an
understanding of this slippage, and its entrenchment within psychiatric discourse,
diagnosis, and clinical practice. Determining where and how this slippage began,
also offers the potential to contextualize it, and to offer a different resolution to this particular ghostly deadlock.
A second important reason for tracing the historical lineage through psychiatry is that this history has been largely ignored within trans scholarship.
While some attempts to trace a trans history through sexology have been
published (for examples see (Cromwell, 1999; Devor, 1997; Prosser, 1998;
Sharpe, 2002)), there are not currently any thorough considerations of the history
o
of transsexuality in psychiatry. Nor does this history exist within a larger history
of psychiatry or medicine. In this way, examining the history of GID within psychiatry functions as an important foundation to a critical trans theory.
Histories of psychiatry have been taken up from two somewhat distinct perspectives, although neither perspective has considered the specific history of transsexuality (or even the more general history of sexual perversion).9 Many
81 am making a distinction between sexology and psychiatry that may seem somewhat arbitrary as there is some cross-over between the two. Certainly, some of the psychiatrists discussed in this phase have also been termed sexologists; however I have chosen to include these particular men because of their impact on clinical psychiatry, not because of their impact on sexology. 91 include the history of transsexuality within the broader category of the history of sexual perversion because psychiatry links them, not because I agree with this linkage.
44 The (Un) Usual Body historians of psychiatry are physician historians, with their medical background leading them to focus almost exclusively on the issues, diagnoses, therapeutic and investigative developments within psychiatry and its sciences. This is an
'internalist' medical history, as opposed to an 'externalist' history, which emphasizes the sociocultural, political, economic, and social contexts in which the psychiatric science and practice occurred (Wallace & Gach, 2008). The historical tracing that follows falls into an 'externalist' history; the developments within the nascent profession of psychiatry are important, but so are the relevant external factors, such as the social, political, and intellectual climate.
One very important reason to trace this history through psychiatry rather than sexology is the importance of the medical (psychiatric) understanding to law.
Canadian courts are largely uninterested in what sexologists have to say about transsexuality or their interpretation of a person's sex for legal purposes. Legal considerations of sex are largely turned over to medicine to determine. As barbara findlay (1996, p. 16), law advisor to the Transgendered Law Reform Project in
British Columbia writes: "The fact that the courts look to medicine for the answers to the question: male or female, gives medicine an enormous power, since its answers have significant legal consequences." Moreover, the reliance of the courts on medicine grants medicine an even greater position, that of defining and enforcing what 'transsexual' means, who qualifies under that definition, and what steps one must take in order to satisfy the medical profession that one is in fact transsexual enough (findlay, Laframboise, Brady, Burnham, & Skolney-
Elverson, 1996). Moreover, as feminist legal scholar Carol Smart (1990) argues,
45 The (Un) Usual Body
there is a symbiotic relationship between law and medicine that functions to offer
both the ability to speak the 'truth' about sex. The medical specialty most
involved with both the medical and legal aspects of transsexuality is psychiatry.
Psychiatry therefore holds a very strong position in relation to transsexed persons
in Canada today, thereby suggesting that the history of that understanding is best
uncovered through an examination of the history of this disorder within
psychiatry.
Imperial Germany
German psychiatry underwent significant changes at the end of the
nineteenth-century; changes that combined with the shifting legal landscape
appear to have influenced the scientization and medicalization of all things related
to sex or sexuality. Carl Westphal, one of Germany's most influential
neuropathologists, succeeded Wilhelm Griesinger in the first full Prussian chair in
psychiatry at the Charite in Berlin. "Westphal had been Griesinger's assistant in the mid-1860s. After 1868 he headed the psychiatric and neurological wards,
initially as a professor extraordinary and after 1874 as a full professor"
(Engstrom, 2003, p. 115). Where Carl Westphal was a major player in both the rise of sexual science and the changes in clinical psychiatry (and is discussed later), his predecessor and mentor Wilhelm Griesinger was the catalyst for much of the psychiatric change that laid the blueprints for the treatment of transsexed people today in the United States and Canada.
46 The (Un)Usual Body
The increasing numbers of people institutionalized in asylums throughout
Europe in the nineteenth century has been taken up from a couple of conflicting perspectives. On the one hand, there are those, like Foucault (1973), who argue that the dramatic increases in asylum admissions during the first half of the nineteenth century were, in large part, reflective of the asylum as a form of discipline that functioned as a practice of governmentality and a means of social control. In this view the increase in admissions was based on an increasing intolerance for behaviors deemed deviant, with involuntary incarceration used as a means of removing deviants from larger society. It is this same perspective that has led to activism and lobbying to remove some categories of behavior from mental illness diagnoses, such as the successful homosexual lobby in 1973 to remove homosexuality from the American Psychiatric Association's DSMIII
(1980). This perspective has also spawned the growing advocacy movement of anti-psychiatry.
A second perspective, such as that put forward by psychiatric historian
Edward Shorter (1997), argues that the increase was largely due to increases in mental disorders such as neurosyphilis, alcoholic psychosis, and, possibly, schizophrenia. As Shorter (1997, p. 33) astutely points out: "Through this historical debate, as through psychiatry itself, runs the cleft demarcating neuroscience from psychosocial understanding. The neuroscientific side of the story sees growing pathology; the psychosocial version sees a social universe increasingly intolerant of deviance." What both perspectives can agree on, as
Engstrom (2003, p. 17) notes, is that "The first half of the nineteenth century has
47 The (Un) Usual Body
quite correctly come to be identified as the beginning of the institutionalization of
the mad."
Most of the mad in Europe in the early 1800s were institutionalized in
large rural asylums (Ackerknecht, 1968; Shorter, 1997). The distance from urban
centers, and the universities housed in them, made it difficult to teach and retain
medical students in the rural asylums. As well, the asylum director, who played
the role of paternal head of family within the institution, was required to live in
the facility, and to tend to increasingly larger numbers of patients. Because of the
distance between these large rural facilities, and the incredibly large personal
workload of the director, each asylum tended to operate in an isolated fashion,
without the benefit of a larger professional community.
Major theoretical and clinical changes occurred in psychiatry in the latter
half of the nineteenth century, driven predominantly by events in Germany. While
Germany had lagged behind England and France in psychiatric care and
developments in the first half of the nineteenth century, German achievements in
the second half of the century put them on the cutting edge of psychiatry in the
western world (Ackerknecht, 1968; Engstrom, 2003; Shorter, 1997). Germany
offered a unique political situation in which the increasing pursuit of psychiatry as
a medical science was able to thrive.
According to Eric Engstrom10 (2003, p. 17), "the 1860s became watershed
years for psychiatry's professional development." During this time, German
10 Eric J. Engstrom is arguably the most prolific and authoritative historian in the area of Imperial German clinical psychiatry. He is one of a handful of historians working in this particular area, and one of the only who publishes in both German language journals and English language journals. While psychiatric histories covering this time frame inevitably discuss Imperial
48 The (Un) Usual Body psychiatrists formed associations, established new journals for psychiatric specialists, moved to standardize practice, called for full academic chairs in psychiatry, and worked to achieve consensus on diagnostic and statistical categories of mental illness. While these reforms started prior to the arrival of
Wilhelm Griesinger in Berlin in 1865, his reform platform of 1868 had a major impact on the direction and professionalization of clinical psychiatry, not only in
Germany, but arguably throughout the western world (Dietze & Voegele, 1965).
The dispersal of academic talent among over 20 universities and medical academies throughout Germany brought with it lively competition for scientific advancement (Engstrom, 2003; Shorter, 1997). It was within this competitive research climate that Wilhelm Griesinger launched his reform platform; a program that questioned the basic assumptions of asylum life, and postulated an alternative for psychiatry through the university. Griesinger's reforms implied a radical realignment of professional jurisdictions and the redistribution of professional labor (Engstrom, 2003). These changes coincide with the shift in law and the writings on sexual science so that sexual difference becomes entrenched as sexual perversion in part through Griesinger's reforms and the shift in professional jurisdictions.
Wilhelm Griesinger Wilhelm Griesinger's (1817-1868) reform program of 1868 is born out of three major problems he sees in psychiatry at the time (Engstrom, 2003). First, the
Germany, as Germany was the world leader in psychiatry, I rely extensively on Engstrom's (2003) Clinical Psychiatry in Imperial Germany: A History of Psychiatric Practice as it offers the most detailed coverage pertinent to my historical tracing.
49 The (Un) Usual Body
crisis of overcrowding in the asylums, which by this time is significant. Second,
the lethargic transmission of scientific knowledge that is complicated by an
ongoing conflict between university researchers and rural asylum directors. The
third problem was the ineffectiveness of using curability as a criterion.
In the early 1800s, psychiatry sees curability as the most important
medico-administrative principle leading to the construction of new asylums
(Engstrom, 2003). Patients were designated as either curable or incurable, and
institutionalized based on that determination. "Yet, as Griesinger argued, that
criterion lacked any viable medical basis and could be applied at best only to a
very small proportion of patients; for the vast majority, no reliable and definitive
demarcation between curable and incurable was possible" (Engstrom, 2003, p.
54). Griesinger, therefore, argued that a different standard was needed, one based
on a strictly pragmatic consideration of the duration of treatment required.
In accordance with this new standard, Griesinger envisioned two separate
kinds of mental institutions: one for long-term care patients, who had chronic or
incurable illnesses, and a separate facility for short-term transitory patients, who
were in the acute phase of an illness or who had curable illnesses (Doerner, 1981;
Engstrom, 2003). Long-term care should occur in large rural asylums {landliche
Asyle), in which agricultural labor could offset costs as well as offering a
therapeutic alternative to idleness. While these facilities were much like those that
had formed the backbone of psychiatric care across Europe throughout the
nineteenth century, Griesinger envisioned a significant difference: "At the core of
Griesinger's critique lay his belief that asylums failed sufficiently to differentiate
50 The (Un) Usual Body between categories of patients and had therefore effectively become carceral institutions" (Engstrom, 2003, p. 55). By maintaining separate institutions designed to meet the needs of either acute or chronic patients, with strict regulations around who was to be institutionalized in them, Griesinger's facilities were designed to be therapeutic.
Griesinger's short-term care facility was designed as an urban asylum
(Stadtasyle) (Engstrom, 2003). These were for short-term, so called transitory patients. They would house between 60-150 patients (versus the rural asylum's
400-600), with a maximum stay of 12 months; however in exceptional cases this might be extended to 18 months (Engstrom, 2003). These patients would include educated, middle-class urbanites - something that did not happen in the rural asylums. By including educated patients, urban institutions were offered an advantage over their rural counterparts; as Griesinger's successor Westphal argued "better educated patients improved the prospects of diagnosis, because they allowed for "better insight" into mental processes" (Engstrom, 2003, p. 81).
These university facilities also allowed for a penetration of psychiatry into society as a whole (Doerner, 1981); thus allowing psychiatry to produce knowledges and exercise power in situations previously outside of its authority.
Rural asylum entry was designed to be difficult in order to prevent them
"silting-up" with nursing home patients (Engstrom, 2003). Bureaucratic barriers to admission for urban asylums, however, was reduced so that acute and emergency cases could receive immediate medical attention (Doerner, 1981).
There also had to be rapid transfer out "to prevent the asylum from degenerating
51 The (Un) Usual Body into a stigmatized "Irrenhaus" for long-term, chronic patients" (Engstrom, 2003, p. 56).
The urban asylum, in Griesinger's reform, played a vital role in the interests of psychiatric education, as well as in the professionalization of psychiatry as a discipline within medicine, through the introduction of a proto- university psychiatric clinic (Marx, 1972). It would offer students easy access to clinical instruction. The short-term care would offer a rich and ample supply of acute cases for student observation and instruction; through rapid turn-over of cases, with only a handful of chronic and incurable patients needed to fulfill didactic responsibilities. In Griesinger's own words: "If one furnishes the urban asylum in a university town with the resources necessary to make it a true scientific observatory and then adds a lecture hall - then the urban asylum ... becomes a clinical asylum" (Griesinger quoted in (Engstrom, 2003, p. 57)). As
Engstrom (2003, pp. 72-73) argues: "Thus, behind Griesinger's reforms and their aim of replacing early nineteenth-century criteria of curability (curable vs. incurable) with that of institutional duration (long-term vs. short-term), lay an attempt to capture a specific group of patients for clinical psychiatry."
One larger impact of this reform was the ability to speak to the growing social problems spawned by rapid urbanization (Dietze & Voegele, 1965). Where rural asylums had been unable to overcome the difficulties of their distance from urban universities, such as lack of transmission of scientific research or education of medical students, as well as their increasingly problematic overcrowding, the university clinic was poised to institute effective policies of mental hygiene and
52 The (Un) Usual Body advance socio-hygenic and prophylactic arguments and solutions to help alleviate some of these social problems. Griesinger's additional creation, the university polyclinic was paramount in this regard. The polyclinic operated as an out-patient clinic that allowed both an increase in the number and type of patients that could be seen in the formal university clinic ward (Doerner, 1981), as well as allowing the director to control the admission of new patients through this contact prior to admission. In this way, as Engstrom (2003, p. 86) argues, university psychiatric clinics became:
the flagships of a new scientifically based, social psychiatry; they represented the psychiatric side of Virchow's medical reforms and his call to arms of a hygienic movement that would supplant the religious and moral foundations of traditional forms of welfare and organize them instead around principles of positivist medical science and community-based social services.
Griesinger also tried to redefine psychiatry in neuropathological terms and anchor it firmly to internal medicine (Marx, 1972). Throughout the 1870s and
1880s, this redefinition of psychiatry, combined with Griesinger's other reforms
(which were enacted after his untimely death in 1868), helped laboratory research exert a powerful influence on psychiatric practice, leading to the first attempt at biological psychiatry. Edward Shorter (1997, p. 69) argues: "What began as a promising attempt to limn the biological and genetic roots of psychiatric illness ended in the specter of "degeneration," the notion that inherited mental illness worsened steadily over generations"; however, in light of the return to biological psychiatry in the late twentieth and twenty-first centuries (Rose N., 2007; Stone,
1997), the importance of this redefinition and Griesinger's reforms must once
53 The (Un) Usual Body again be reevaluated. Perhaps the most important effect of Griesinger's reform platform, making him the single most influential agent of biological psychiatry, was the establishment of the modern model of university psychiatric departments; a model dedicated to research and teaching, rather than custodialism (Shorter,
1997). This reform has the further distinction, from a social history perspective, of having also functioned as a technology of normalization in that previously invisible, and therefore unnoticed, conditions began to come under the scrutiny, and subsequently authority, of psychiatry (Doerner, 1981).
While Griesinger did not live to see his reform platform enacted, his successor, Carl Westphal, opened a Poliklinikfiir Nervenkranke at the Charite in
Berlin in 1872 and linked it to the neurological ward. This was one of the first psychiatric polyclinics to be established (Engstrom, 2003). Modeled on the pediatric and ophthalmological clinics, Westphal used it to investigate conditions that were otherwise not available to psychiatrists within a ward setting. By 1911,
Germany had almost 1400 physicians specializing in psychiatry, with 16
Griesinger-style university clinics; in contrast, England waited almost 60 years before its first university clinic was founded (Shorter, 1997). Germany was somewhat uniquely suited to this amount of research as the separate German states that came together in the unification of Imperial Germany in 1871 retained their universities and provincial funding, allowing for strong competition in research. The move from institutionalizing and curing the mad to the university clinic's nosological and socio-hygenic focus served as a foundation for the
54 The (Un) Usual Body increasing need for sexual science (sexology) and legal and medical interventions into 'sexual perversions.'
This university polyclinic style continues today with contemporary gender clinics modeled after them. Thus, the changes occurring in nineteenth century
German psychiatry and law appear now as ghosts that herald some of the extremely significant conditions of possibility in the production of the pathologization and medicalization of trans-ness that continues today. Without the shift from rural asylum to university polyclinic, the adoption of strict Prussian law throughout a unified Germany, and an increasing need to find an acceptable homogenous nosology, many of the 'sexual perversions' made famous in Richard von Krafft-Ebing's Psychopathia Sexualis might never have fallen under psychiatry's purview.
Sexology
Historically, trans bodies came to psychiatry largely through the courts.
An increasing number of trans bodies were brought before the courts in Imperial
Germany after unification due to changes in law. There was little interest in transsexuality in psychiatry prior to the many social, professional, and legal changes occurring around unification and the turn from the 19th to the 20l centuries. There is, however, some court interest, and it is through this that the first important writings on transsexuality come to be published. I consider these writings to belong to sexology - the scientific study of sexuality - and have
55 The (Un) Usual Body labelled them as such. Sexology did not cease with the professionalization of psychiatry; however, the importance of sexologists who were not allied with psychiatry to a contemporary understanding of transsexuality (especially in law) is somewhat negligible. The two men discussed here as sexologists had a significant impact on the way that psychiatry came to take up the study of sexual perversion and transsexuality, as they were the impetus for the more accepted psychiatric studies published later, and this is why their work is included in this project.
Karl Heinrich Ulrichs
One of the first, and arguably the most important, reference to trans bodies comes from German lawyer and advocate of 'Urnings' rights Karl Heinrich
Ulrichs (1825-1895) through the terms 'third sex' and 'Urning' (and indicating the female to male form 'Urningin' (Ulrichs, 1994, p. 303)) dating from the mid
1800s (MacKenzie, 1994; Sharpe, 2002; Stryker, 2008; Kennedy H., 1988).
Ulrichs developed the 'third sex theory' as a new 'scientific' theory to explain not only his sexual desire for men, but more importantly, his experiences of himself as a feminine being (Hekma, 1996). In Ulrichs' writing, he theorized that same- sex desire was the result of having a soul that was not congruent with one's body.
Ulrichs used the notion of the feminine soul trapped in a man's body to explain and vindicate his sexual desire for men, thereby making an explicit connection/conflation between sexual desire or object choice and gender/sex.
56 The (Un) Usual Body
According to Hubert Kennedy" (1988, p. 57): "Ulrichs asserts that this distinct
inborn nature refers not only to feelings of sexual love, but that in spirit, in his
entire non-physical organism, the Urning is feminine and this can be seen by his
feminine characteristics." Urnings, according to Ulrichs (1994, p. 36), in an
English translation of his 1864 booklet Vindex, making up a "special sexual
species, are similar to hermaphrodites As a third sex, we are on the same level as
the male or female sex, but we are independent of the male and female sex, fully
separate from both."
In Ulrichs' (1994, p. 36) description: "The Urning is not a man, but rather
a kind of feminine being when it concerns not only his entire organism, but also
his sexual feelings of love, his entire natural temperament, and his talents"; as
Ulrichs describes himself: "Sunt mihi barba maris, artus, corpusque virile; His
wclusa quidem sed sum maneoque puella (Have I a masculine beard and manly
limbs and body; Yes, confined by these: but I am and remain a woman)"
(Kennedy H. , 1988, p. 56). While Ulrichs' writing mainly describes a desire to be
sexed differently, his main commentator, Hubert Kennedy, in a further conflation
of object choice with gender/sex, makes sense of Ulrichs unproblematically as
"the first self-proclaimed homosexual" (Kennedy H., 1988, p. 9).
" Hubert Kennedy is one of the foremost scholars in the history of homosexuality In particular, Kennedy is considered the expert on Ulrichs, having written extensively on his life and writings Kennedy has also had Ulrichs' works translated into English Any leference to Ulrichs' life or work inevitably positively references Kennedy While 1 rely on Kennedy's work in relation to Ulrichs, I am fundamentally at odds with Kennedy's assumptions This may seem an insurmountable contradiction, however it is my position that the flaw in Kennedy's work stems from the transphobic assumption that a person with a male body must be a man, and not from any historical, theoretical, or translation errors Therefore, it is not Kennedy's historical accounting that I find problematic, but the assertion of the meaning of that historical finding In this way, I find Kennedy's work invaluable to my own, while still acknowledging the limitations of it
57 The (Un) Usual Body
Kennedy bases this declaration on his assumption that Ulrichs' male body makes him unequivocally male and a man; Ulrichs's feelings of femininity, therefore, stem from an erroneous (yet common) assumption that men who love men are feminine. Kennedy (1988, p. 50) states: "an assumption of Ulrichs (and here he agreed with everyone else) is that a love that is directed toward a man is necessarily a woman's love. This implied that the source of this love must be feminine." However, as Ulrichs (1994, p. 113) himself argued, it is a delusion to believe "any individual possessing the build of a male is a man", because as
Ulrichs' experience clearly indicates "there are individuals with the build of males who are not men"; a clear statement that Ulrichs actually understands himself to be a woman, regardless of his male anatomy. In this way, I argue that it is not
Ulrichs' but rather Kennedy's assumption that is erroneous. Ulrichs' depiction of the Urning as feminine stems from his knowledge of himself as a woman, albeit with a male body. Rather than Ulrichs' discussion of femininity being understood as a reflection of a lack of understanding of same-sex desire - a homophobic assumption - it is Kennedy's transphobic assumption that Ulrichs is a man, based on his having a male body, that is the erroneous one.
Ulrichs describes Urnings in ways that are similar to twentieth-century descriptions of transsexed people. In his earlier works, Ulrichs describes childhood desires of cross-dressing, the desire to play with gender inappropriate toys, and feelings of femininity. Ulrichs (1994, pp. 92-93) speaks of the incongruence of his feelings and his body in the hopes of increasing awareness and understanding:
58 The (Un) Usual Body
One of the most obvious and, at the same time, the greatest proof, is a certain feeling of discomfort in one's own body, a certain dissatisfaction of the feminine soul with a body with the male form in which it is enclosed. (The situation of the Uranian soul may be compared to the discomfort resulting from placing the left hand into a glove that fits the right one.)
Ulrichs himself was criticized for not being feminine enough: "Magnus
Hirschfeld never met Ulrichs, but he reported that many, who knew him personally, assured him that Ulrichs "in no way gave a feminine impression."
(Hirschfeld 1914:110)" (Kennedy H., 1988, p. 63). Kennedy (as did Hirschfeld before him) includes quotes such as this in an attempt to erase the differences between Ulrichs' experiences and narratives and the experiences of a gay man. In order to make Ulrichs' Urning fit within the category 'homosexual' the feminine leanings and the discussion of female spirit need to be discredited. Kennedy works to discredit them through the notion that Ulrichs is merely following along with the assumptions of others during this time period. Ulrichs (1994, pp. 151-
152), however, speaks directly to this kind of attack:
An Urning, moreover, has purely feminine mannerisms as a child only. When he becomes an adult, his mannerisms are less feminine than those of the emancipated woman. This is brought about, on the one hand, by the assumption of masculine mannerisms, on the other hand, by our own striving to hide our feminine mannerisms, because of the disgrace people attribute to us for having them. Purely feminine mannerisms remain in adult Urnings and reappear only when these motives have been ineffective; for example, in the cases of Blank and Antinous and in certain other case-examples I mentioned.
59 The (Un) Usual Body
Moreover, the need to hide these female qualities persists today in many cultures, as there continues to be little institutional recognition of cross-gender/sex identifications in many countries, leading to problems in employment, housing, medical care, and family relations (among others) (Cavanagh S. L., 2003;
Cavanagh & Sykes, 2006; Heath, 2006; Lloyd, 2005; Namaste, 2005; Sharpe,
2002; Stotzer, 2009; Turner J. L., 2009).
While Kennedy wishes to find his "first self-proclaimed homosexual"
(Kennedy H., 1988, p. 9) in Ulrichs, his drive to find commonality leads him to miss the obvious differences. Kennedy appears to believe he can explain away the discrepancies between his experience and Ulrichs' explanation of the Urning by presuming Ulrichs to have made a homophobic assumption that negates these differences; however, what becomes apparent is that in doing so, Kennedy makes a transphobic assumption that renders the differences that much more obvious.
Ulrichs' descriptions of himself as a woman in a male body cannot be so easily explained away by the suggestion that he is homophobic. Nor should we accept the erasure of his feminine identifications without the acknowledgement that doing so is transphobic.
In his 1879 writing, Critical Arrows (Critische Pfeile), Ulrichs allows for some Urnings to express significantly less femininity, positing that feminine features are strongly varied in degree; it is this less feminine end of the spectrum that appears to have more in common with Kennedy's experience and assumptions. However, as Ulrichs (1994, p. 152) so strongly states: "You consider an Urning to be an effeminate man whenever you belittle his feminine
60 The (Un) Usual Body mannerisms. However, just as an emancipated woman, he is a virilized feminine being. He is not feminized, but virilized." Ulrichs also had a separate class of men, Dionings (sometimes translated as heterosexual men), who may interact sexually with Urnings, but are not feminine at all. Their interaction with Urnings is not considered homosexual, because for Ulrichs, only the Dioning is a man, the
Urning is not. Ulrichs' point is that a penis does not make a man. Sex between a
Dioning and an Urning may be sex between two people with penises, however it is not sex between two men, and should therefore not be construed as homosexual.
Ulrichs' own experience, as he described it, appears more closely in line with what I have termed "transsexed" than with what Kertbeny, and all who followed after him including Kennedy, termed "homosexual." Moreover, the less feminine Urning cannot necessarily be equated with today's male-identified gay man, as the spectrum from which people today identify as trans and/or gay does not offer hard limits or boundaries between these positions. For the purposes of this genealogy, Ulrichs' description offers examples of bodily experience that suggest the transsexed body over the homosexual body; but whether today Ulrichs would self-identify as either transsexed, homosexual, or something else is entirely speculative and outside of the scope of this inquiry.
Interestingly, Ulrichs' idea of the 'Urning' was taken up by a number of different people with very different results. Sexual science, in large part, comes about through a combination of Ulrichs' writings and their impact on many of the main players in the rise of modern psychiatry, combined with the changes in law
61 The (Un) Usual Body brought about by the unification of Germany. Where other German states, such as
Bavaria, did not have similar laws, Prussia had a strict, heavily penalized law against "unnatural fornication", which, with unification in 1871 and the adoption of Prussian law throughout the empire, "became a crime throughout Germany, under the infamous paragraph 175" (Hekma, 1996, p. 220). With the change in law, a growing consciousness of same-sex love and other sexual activities in the late 1800s, due in part to rapid urbanization, as well as a lack of juridical knowledge about such activities: "The legal system, therefore, turned to the medical community for explanations" (Bullough V. L., 1994, p. 23). However, as
Eric Engstrom (2003, p. 29) notes: "If psychiatry was to be able to put its case successfully to lawyers, then that case had to be based on a solid, though as yet non-existent scientific consensus within the profession." In this way, the cooperation of law with psychiatry functions to extend the domain of law through the incorporation of the terms of discourse of psychiatry and the inclusion of its technologies within the discourse of law (Smart, Feminism and the Power of Law,
1990). Law and psychiatry both come to produce knowledge/power about sex through these new modes of discipline and surveillance.
This legal need for medical expertise led to Ulrichs' writings, as one of the only sources of'scientific' writing on this kind of sexual variation, finding their way into the hands of many of the foremost medical and psychiatric doctors of the time, including Carl Westphal, Alois Geigel, and Richard von Krafft-Ebing. As
Bullough (1994, p. 21) notes, Ulrichs' writings deeply influenced the researchers from the end of the nineteenth century who laid the foundation for modern sex
62 The (Un) Usual Body research, including: "Richard von Krafft-Ebing (1840-1902), whose Psychopathia
Sexualis was the starting point for discussion and treatment of 'abnormal' sexuality". Within modern clinical psychiatry, Krafft-Ebing's work, as discussed later, still holds a significant place; albeit one that is obscured through recourse to the disciplining technologies of psychiatry that produce psychiatric knowledge as progressive scientific truths.
While Ulrichs is writing from a legal perspective, it is his argument that this is a natural inborn state that captures the curiosity, and sympathy, of psychiatry, albeit from a vastly different perspective. Where Ulrichs sees a normal variation that should not be subjected to legal penalty, psychiatry sees madness - a pathology that should not have a legal consequence, but instead medical treatment. As Alois Geigel (1869, pp. 29-30), professor of medicine in Wiirzburg wrote:
We are compelled to assume it a mental disorder, a sickness, where such a degree of aberration from normal appearance of a healthy life is found; and we would call such persons not Urnings, but rather "mentally ill," since in them essentially the same functions that we are accustomed to designate as mental are subjected to the disorder. (Kennedy H., 1988, p. 132)
Karl Maria Kertbeny
In 1869, after corresponding with Ulrichs, Karl Maria Kertbeny (1824-
1882) first coined the term 'homosexuality', which he meant to connote same-sex desire without the gender inversion Ulrichs' term 'Urning' contained (Stryker,
2008). Larger public distribution of Kertbeny's term 'homosexuality' as well as
63 The (Un) Usual Body his term 'hetero sexuality' occurred in Gustav Jaeger's 1880 book Discovery of the
Soul (Entdeckung der Seele) under the pseudonym "Dr. M." (Johansson & Percy,
1994; Kennedy H. , 1988; Jaeger, 1884). These two terms of Kertbeny's, as well as others' terms (such as Ulrichs' 'Urning' and Westphal's 'contrary sexual feeling' which will be discussed later), are taken up by Richard von Krafft-Ebing
(1886) in Psychopathia Sexualis "the first classic in sexual science which has had an enduring influence" (Robinson, 1950, p. iv), and go on to become the most widely used and accepted terms to this day. As Bullough (1994, p. 26) explains:
"Kertbeny's new term 'homosexual,' juxtaposing the Greek prefix homo (same) with the Latin sexualis, was adopted and popularized by Krafft-Ebing, thus distinguishing it from bestiality, sodomy, pederasty, and other activities and behavior with which it had previously lumped together." One problem that has arisen out of this, is that the distinction between Kertbeny's term 'homosexual' and Ulrichs' term 'Urning' has largely been erased due to the popularization and use of the term homosexual. Where 'homosexual' was coined by Kertbeny in order to present a different experience than Ulrichs' 'Urning', they have been taken up as referring to the same phenomenon. The first, and most important instance of this conflation occurs in Richard von Krafft-Ebing's (1950, p. 364)
Psychopathia Sexualis first published in 1886, where he equates "Homo-sexual
Individuals, or Urnings", stating that "the anomaly is limited to the vita sexualis, and does not more deeply and seriously affect character and mental personality."
These two men, Ulrichs and Kertbeny, profoundly influenced the major contributors in the rising psychiatric interest in trans embodiments and sexual
64 The (Un) Usual Body perversity. Their work, stemming largely from legal activism, differed in that
Ulrichs was speaking predominantly of gender transgression, while Kertbeny was speaking strictly of sexual desire. With the collapsing of these two different terms into one comes what may well be the initial point of conflation between trans and homosexual bodies that continues to exist today.
Nineteenth Century Psychiatry Carl Westphal
The year 1869 also saw Carl Westphal (1833-1890), a German physician and psychiatrist credited with establishing a scientific basis for the study of stigmatised sexual behaviour (BuUough & BuUough, 1993), publish two landmark case studies in which he diagnosed 'kontrare Sexualempfindung' (which literally means 'contrary sexual feeling' but is more often translated as 'sexual inversion'
(Hekma, 1996, p. 224)) based mainly on the subjects' cross-gender behaviours
(Prosser, 1998; Sharpe, 2002). This marks an important point at which the conflation of sexual desire with gendered behaviour becomes evident. Westphal's importance in psychiatric circles, as Griesinger's successor, lends his blending of these two terms an authoritative significance, as his discursive production exercises power by claiming to speak the truth about these terms.
In the first case, the patient, described as a 35 year old female, had always been sexually attracted to women, however he is quoted as saying: "I think of
121 have inverted the gendered pronouns used by Westphal in order to align them with the expressed views of the people to whom they refer.
65 The (Un) Usual Body myself mainly as a man and would like to be a man" (Westphal C., 2006, p. 94).
His desire to take up boys' roles in childhood and men's roles as an adult suggest that he had cross-gendered desires that should not be caste as merely reflective of same-sex (homosexual) sexual desires. Westphal (2006, p. 140) himself argued that in this case "the feeling of having a man's nature arose independently of any intentional or self-deception from earliest childhood"; yet, in an obvious conflation of sexuality with gendering, he codes his patient's man-ness through the lens of homosexuality; a perspective he takes from 'confessional' writings of male-bodied people (Kennedy H., 1988), such as Ulrichs, whose reports describe not only their sexual desire for men, but their feelings of being women.
The second case involved a person described as a 27 year old male, who cross-dressed from a very young age. She had a long criminal record for theft of women's clothing, and was arrested and sentenced to prison on more than one occasion; she was also imprisoned more than once for deception related to transvestism. After being sentenced to five years in the penitentiary for theft, she stated that she was glad, because "I thought being locked up would surely once and for all free me of this torment, because it was one in fact" (Westphal C.,
2006, p. 100). What is clear within this case history is that the patient's behaviour is related to cross-dressing and cross-gendered behaviour, not same-sex desire. In the patient's own words: "I considered myself to be a pretty young lady"
(Westphal C. , 2006, p. 99); moreover, she had always been sexually attracted to woman, and had never allowed a man to touch her, nor had sexual intercourse with one, although apparently she did at times offer services to men for money.
66 The (Un) Usual Body
She enjoyed the company of women, and, while in hospital, participated in
women's handicrafts, such as embroidery. Westphal (2006, p. 113), while
cautious of this patient's criminal history, recognized that the patient did not use
her cross-dressing behaviour as a defence stating:
So, it is certain that he did not invent this urge for criminal purposes. Therefore, it is also certain that his feminine behavior, the women's preoccupations carried out with a certain passion during his stay in General Hospital, were not artificially assumed in order to give credence to his statements. Therefore, I am convinced that Ha.'s statement regarding his urge to wear women's clothing is based on truth, and certainly probably more than he is aware of himself.
Interestingly, while the cases are clearly focussed on gender identity and role, not
sexual desire, they have also been taken up as referring to homosexuality: as Vern
Bullough (Bullough V. L., 1994, p. 26) remarks, "Westphal marks the beginning of the medicalization of homosexuality, and though Ulrichs had served as a basis
for information and conceptualization, 'scientists' such as Westphal fitted it into their own illness-oriented approach". Clearly, this patient should either be understood as a homosexual woman (a lesbian) or as a heterosexual man, and not, as Bullough has constructed her, as a homosexual man.
The publication of Westphal's case studies was preceded by the Berlin
Medical-Psychological Society meeting of December 15, 1868 at which he presided (Engstrom, 2003), and during which he reported on the pathological
significance of several cases of persons with a "perverse inclination to individuals of the same sex or at least behaved in dress, actions, and the like in a way not corresponding to their sex" (Kennedy H. , 1988, p. 128). In particular, Westphal
67 The (Un) Usual Body
reported on cases he witnessed in India, where he found classes of men who wore
women's clothing and lived as women, whom he termed "womenmen or
menwomen", as well as women who lived as men and married women, living
together as man and wife (Westphal C., 2006, p. 120). Citing the early work of
Ulrichs on Urnings, Westphal based his assumptions and findings on Ulrichs's
third sex theory (Bullough V. L., 1994); yet he did so with a merging of Ulrich's
discussion of gender-crossing behavior with Kertbeny's discussion of sexuality.
According to sexualities scholars, Westphal's study can be seen to herald
the inauguration of the pathologization of bodies deemed 'invert' (Faderman,
1981); a pathologization that within gay and lesbian historiography has been
taken as the defining moment of the creation, medicahzation, and pathologization
of the homosexual (Foucault, 1990). However, as Sharpe (2002, p. 19) points out:
"the lexicon of contrary sexual feeling or sexual inversion served, as in Ulrichs'
work, to capture not homosexuality, but the phenomenon of transgenderism."
To fully comprehend Westphal's contribution to the (mis)understanding
of trans embodiments we must also take note of his equation of behaviours, practices, and desires commensurate with trans embodiments to moral insanity
and imbecility. In discussing examples written about by Ulrichs, Westphal's
remarks are cruel and judgemental. When discussing the case of Susskind
(Frederike) Blank, a male who dressed and lived as a woman until she killed herself after being arrested, Westphal (2006, p. 116) writes:
131 use the term (mis)understanding, as discussed in Chapter 1, not to suggest that there is an alternate correct understanding, but to point to the foundational conflation that makes any understanding a misunderstanding; any understanding of trans embodiments that comes out of this conflation in language can only be a misunderstanding.
68 The (Un) Usual Body
Also in this case do we not have an obvious imbecile? Or how else would one measure the intelligence of a man who seeks government approval to choose a woman's name and as "Frederike" announce his engagement? It seems that this case is analogous to ours, even if, as far as we know, Ha. had not practiced passive pederasty. Here it is a matter of difference on degree.
Westphal (2006, p. 117) goes on to state: "I consider Ha. to be a feebleminded person whose imbecility manifests itself chiefly in the form of moral insanity and who from early childhood has been suffering from an inversion of the sexual feeling analogous to other pathological perversities". What Westphal begins, then, is both the conflation of gender difference with sexuality as sexual difference, and the construction of sexual difference as imbecility and moral insanity; a construction that we can still witness today in the ever popular phrase "That's so gay!" meaning something is stupid. Moreover, due to Westphal's authoritative position in psychiatry, his usage becomes the accepted truth within scientific discourse.
Richard von Krafft-Ebing
Richard von Krafft-Ebing (1840-1902), renowned professor of psychiatry and president of the Viennese Neurological Society, was in communication with
Ulrichs beginning in 1866 (Kennedy H., 1980-81). Krafft-Ebing was inspired by
Ulrichs to study deviations in sexual behavior (Bullough V. L., 1994; Kennedy H.
, 1988); yet Krafft-Ebing (1950, p. 338) believed that "Ulrichs failed, however, to prove that this certainly congenital and paradoxical sexual feeling was physiological, and not pathological." A lack of attention to the distinctions in
69 The (Un) Usual Body
Ulrichs's work, therefore led Krafft-Ebing (1877) to conflate Ulrichs's
phenomenon 'Urning' with both Kertbeny's term 'homosexual' and 'contrary
sexual feeling', the phenomenon Westphal is credited with being the first to
medically define. As Hekma (1996, p. 226) argues:
Krafft-Ebing's model of sexual perversion and "contrary sexual feeling" was very influential, and many psychiatrists followed in his footsteps as he himself had followed in the footsteps of Ulrichs. Although not everybody accepted his mixture of gender and sexual inversion, it has nevertheless distinctly influenced the discussion on homosexuality to this day.
However, Krafft-Ebing's influence over the discussion of homosexuality today is
eclipsed by his influence over the (mis)understanding of transsexuality within
today's psychiatry. By conflating gender/sex expression or identity with sexual
desire in his pathologization of both, Krafft-Ebing fits his cases into his
continuum of pathology, rather than creating categories to fit the cases. His lack
of attention to the nuances and distinctions of Ulrichs's 'Urning' from Kertbeny's
'homosexual' aid in this conflation; a conflation that persists to this day, as I will
discuss in greater detail in the following sections. Moreover, as can be seen in
Phases 3 and 4, the psychiatric (mis)understanding of transsexuality has a
tremendous impact on the legal (mis)understanding of trans bodies, and the
everyday experience of people who live in trans bodies, in both the past and the present.
Even in the late nineteenth century, Krafft-Ebing (1950, pp. 340-341) noted that: "This enigmatical manifestation in the nature of man has led to many
attempts of explanation. Among lay persons, it is called vice; in the language of
70 The (Un) Usual Body
the law, crime." Yet, Krafft-Ebing's pathologization of this 'nature' has had a
lasting impact, in part because, as Robinson (1950, p. iv) argues in the
introduction to the 1950 English translation of Psychopathia Sexualis, it is
through this text, that Krafft-Ebing "brought rationalism to legislation and jurisprudence by helping to erase superannuated laws and superstitious ideas." In
this way, Krafft-Ebing, as a psychiatrist increasingly specializing in forensics,
was instrumental in the cooperation between law and psychiatry that has had
profound and persistent effects on the power of law in relation to sex.
In Krafft-Ebing's (1950) Psychopathia Sexualis, originally published in
1886, gender inversion and homosexual desire, behavior, and preference are
completely intertwined (Hekma, 1996). Stemming from his Text-Book of Insanity
(Krafft-Ebing R. v., 1905), first published in 1879, Krafft-Ebing's conflation of
sexual desire with gender continues from Westphal's work, and, as noted earlier,
he specifically conflates Ulrichs's term 'Urning' with Kertbeny's term
'homosexual'. It is in this moment, within Krafft-Ebing's text, that the distinction
between gender-crossing behaviors and same-sex desires becomes fully merged in
a way that continues today.
Krafft-Ebing (1950, p. 283) sees sexuality as the desire "to perform sexual
acts which correspond with that sexual personality, - acts which, consciously or
unconsciously, have a procreative purpose." By coding any actions or desires
related to sexual acts through this lens, Krafft-Ebing's heteronormative position
leaves little space to understand sexual activities outside of a male/female binary.
Moreover, Krafft-Ebing explicitly equates receptivity with passivity and
71 The (Un) Usual Body femininity, and insertability with activity and masculinity; an equation that continues today in relation not only to people and sexual acts, but to inanimate objects as well, as evidenced in references to 'male' or 'female' electrical connectors. By privileging procreative coitus as the only driving desire
(conscious or otherwise), activity and passivity become sexed/ gendered; the active role (of insertion) must be entered into by a male and the passive
(reception) by a female. Therefore, all sexual acts14 can be thought of as a simulation of coitus, and assigned either a male or female position. Krafft-Ebing then furthers this line of thinking to posit all persons who enjoy passive reception in sexual activity as having female sexual desires, desires that then function to produce them as female - or as desiring to be female.
Within the English translation of his last revised edition of Psychopathia
Sexualis, Krafft-Ebing (1950) cites 46 case studies divided into two categories:
Acquired Antipathic Sexual Instinct and Congenital Antipathic Sexual Instinct.
He further divides these categories into four degrees: 1. Psychical
Hermaphroditism15, in which there are traces of a heterosexual sensibility, yet a
14 For example, the sexual act of cunnilingus can be understood through this procreative lens: the tongue, probing as an insertable, is the male/active object (regardless of whether the tongue resides in the mouth of a male or female person), while the labia and vaginal opening offer the receptive/female counter part. Through this coding a tautology makes the argument unassailable: the desire of the female to be penetrated and the male's desire to penetrate are produced both as a result of the desire for procreative coitus and as evidence of the desire; the evidence proves the result, and the result creates the evidence. The construction of this knowledge within the discourse of medicine through psychiatry further functions to produce this as a scientific truth. 15 Interestingly, while the slippages between trans and homosexuality are obvious both in Krafft- Ebing's work and in common usage today, common current conceptions of the slippage between homosexuality and bisexuality also appear within Krafft-Ebing's text. For example, within his discussion of psychical hermaphroditism, Krafft-Ebing (1950, p. 352) writes about the danger of an increase of the homo-sexual instinct over the hetero-sexual instinct, thereby leading from bi sexuality to homo-sexuality; a concern that appears to be a nineteenth century reference to the current understanding of "bi now gay later", a phrase often used within homosexual contexts to discredit or undermine people who identify as bisexual.
72 The (Un) Usual Body
predominant homosexual feeling; 2. Homo-Sexual Individuals, or Urnings, who
exhibit an exclusive inclination towards people of the same sex; 3. Effemination
or Viraginity, in which "The whole psychic existence is altered to correspond
with the abnormal sexual feeling" (Krafft-Ebing R. v., 1905, p. 85); and 4.
Androgyny or Gynandry where:
The form of the body approaches that which is in harmony with the abnormal sexual feeling. However, there are never any actual transitions to hermaphrodites. On the contrary, the genitals are completely differentiated; so that, just as in all abnormal perversions of the sexual life, the cause must be sought in the brain. (Krafft-Ebing R. v., 1905, p. 85)
Krafft-Ebing (1950, p. 448) envisions these four degrees of antipathic sexual
instinct in a hierarchical manner through Morel's theory of degeneration, where
"the higher grades of homosexuality" show greater amounts of degeneration.
Krafft-Ebing argues that there is a continuum; a hierarchy of homosexuals, with what in today's language we might call the most masculine bisexual men at the top (as the closest to normal) and the most feminine transwomen at the bottom as the most developed or tainted. Krafft-Ebing's continuum further obscures and tangles the slippage between trans bodies and homosexual bodies; an obfuscation and entanglement that continues to this day and that functions as an obvious
scientific truth due to its location within the discourse of psychiatry.
Krafft-Ebing's categorizations and hierarchy appear to neatly map onto the contemporary categories 1. Bisexual; 2. Homosexual; 3. Transgendered; 4.
Transsexual. This contemporary mapping, which I argue is derived from Krafft-
Ebing's categorizations, reinforces the concept of a hierarchical continuum of sexual minorities in which bisexuality moves into homosexuality, and where
73 The (Un) Usual Body playing with gender (such as with drag or the gender crossing seen in non-trans homosexual contexts) might occasionally slide into gender dysphoria and the desire for sex reassignment. Moreover, the continuum places trans-ness firmly within a homosexual context, as a form of sexuality and/or sexual desire rather than an embodiment of sex and/or gender. The assertion of the continuum into a contemporary setting reminds us of the purpose of this historical recounting: through this return to the past, Zizek's (2000) ghosts offer us the opportunity to resolve their deadlocks differently. By reassessing Krafft-Ebing's cases and their places within his continuum, I intend to disrupt this mapping, and perhaps, offer an opportunity for an alternative resolution.
While Krafft-Ebing's continuum is troubling in itself, in order to understand the ramifications of this continuum we must also consider the cases
Krafft-Ebing assigned to each of his levels, and the ways in which those cases are discussed. It is important to note that in his work he examines significantly fewer cases involving persons with female anatomy. Because the law in Germany criminalized sex between men but not between women, his work, focusing on the forensic aspect psychiatry, contains a lack of recognition of female-bodied people engaging in behaviors that would have been deemed antipathic sexual instinct.
The unnatural fornication law was designed to protect hegemonic masculinity, and in particular the military class, from the increasing incidence of syphilis and the madness induced by neurospyphilis. In this regard, the linking of any behaviours deemed detrimental to hegemonic masculinity with deviant sexual desires was made through the marriage of forensic psychiatry and the law
74 The (Un) Usual Body
prohibiting unnatural fornication. Moreover, most of the case studies involving
persons with female anatomy also include a history of delusions, suggesting that it
is the delusions, and potential schizophrenia,16 that has brought their behavior to
the attention of psychiatry in marked contrast from that of persons with male
anatomy.
A further confounding variable is the coding of sexuality as being driven
by procreative desires that decreases the consideration of female-bodied people.
The penis is an easily understood sexual insertable that is thus unequivocally an
active, male, object; therefore bodies with a penis can easily be understood in an
active role. Bodies without a penis are not as easily understood as active (other
appendages, such as fingers, tongues, noses, or feet, are not as sexualized as the
penis and are therefore not as easily understood as sexual insertables) leading to
the assumption that there are more male-bodied people who are homosexual or trans; an assumption that appears in Krafft-Ebing's work, and that continues today, where statistics typically show significantly more MTF than FTM
individuals. Whether this difference is an accurate reflection of the numbers of people who experience trans identification is irrelevant, because that is not what the numbers measure. Moreover, it is not that the current statistics are themselves incorrect, it is the bias in the formulation of the statistics that reflects Krafft-
"i The beginnings of schizophrenia are contested with some, such as Edward Hare (1988), arguing that schizophrenia is a recent disease, while others, such as Nigel Bark (1988), argue that it is probably a very old disease that existed prior to its naming in the nineteenth century. What is clear is that descriptions of cases presenting as schizophrenia are virtually absent from medical literature prior to 1800, and become increasingly apparent thereafter (Shorter, 1997). The rise of such cases also coincides with the increase of cases of female-bodied persons diagnosed with antipathic sexual instinct, suggesting an interesting, although unexplored, relationship between them.
75 The (Un) Usual Body
Ebing's assumption. Modern statistics on transsexuality typically count the
numbers of people that have sex reassignment surgery, a count that favors MTFs
because of the many gendered biases within the systemic evaluation, referral, and
surgical processes. Surgical outcomes are significantly aesthetically and
functionally better, as well as cheaper, for MTFs than for FTMs. Cross-dressing is
culturally inappropriate for males, yet difficult to determine in females, making
MTFs more conspicuous as well as more likely to require and receive psychiatric
evaluation - a precursor to surgery. The (mis)understanding of transsexuality as a
male problem - i.e. the transsexual is always already a man in a dress - further
privileges the counting of MTFs over FTMs; and it is this (mis)understanding that
appears to stem directly from Krafft-Ebing's assumption.
Of the nine cases Krafft-Ebing diagnosed with Psychical Hermaphroditism
(either congenital or acquired), only three cases (cases 125, 136, and 154)
involved individuals who were recorded as being sexually attracted to both men
and women. Another four of the cases (cases 134,137, 127, 153 respectively)
provide a range of desires, activities and experiences including frottuerism,17
fetishism, pedophilia,19 and delusional schizophrenia. Case 135 involved a man
17 Frottuerism, a paraphilia contained within the DSM, involves touching or rubbing up against a nonconsensual person, usually in a public place (American Psychiatric Association, 2000). 18 Fetishism, a paraphilia contained within the DSM, involves the use of a nonliving object as a means of sexual stimulation (American Psychiatric Association, 2000). In the case mentioned, the man required either an imaginary image of servant men's boots, or the actual physical object in order to get and maintain an erection. The object of his sexual desire was the boots, not men, women, or both. 19 Pedophilia, a paraphilia contained within the DSM, involves sexual attraction to and/or activity with prepubescent children of either sex (American Psychiatric Association, 2000). The desire for sexual activity with children may be exclusive, or it may appear with a sexual desire for adults as well, however the coding of the desire for children as homosexual, heterosexual, or bisexual is not considered appropriate, as the sex of the child does not always reflect the sex of adults to whom the pedophile is sexually attracted.
76 The (Un) Usual Body who enjoyed frequent intercourse with men, yet was married with children.
Although his history suggests that he had sexual desire only for men, his inclusion in this category appears to be based on his having married a woman and fathered children, an obvious conflation of act and desire.
The last case (126) involved a woman who was sexually attracted to men, yet who consciously chose not to have sexual relations with them after passing as a man and being privy to the ways that men spoke about and treated women. This woman participated in sexual activities with women in order to fulfill a need for sexual gratification rather than through a sexual desire for women. This particular case is also complicated by the homosexual activities occurring in sex segregated institutions (both in prison and in a mental institution) where sexual access to men was prohibited, a phenomenon that is captured today in the slang term 'gay for the stay.' Characterizing this behavior as either homosexual or bisexual denies the
(hetero)sexual desires of the individual, as well as conflating the act with the orientation; a conflation that also occurs in case 135. How can we make sense of a category that purports to diagnose antipathic sexual instinct as psychologically hermaphroditic, when the cases used to define the diagnosis cannot support the claim?
The 15 cases Krafft-Ebing diagnosed as "Homo-sexual Individual or
Urning" include twelve cases in which the individual's history supports the claim
20 Sex segregated facilities and access to opposite sex partners offers an interesting, but unexplored complication in that in today's psychiatric discourse this is considered a situation in which such behavior cannot be coded as an authentic expression of desire. For example, within prisons in Canada, inmates diagnosed with GID are not able to qualify for SRS unless they have undergone the real life test prior to incarceration because the prison is not seen as "real life" due to sex segregation.
77 The (Un) Usual Body of homosexuality. The remaining three cases involve individuals whose histories suggest an identification that may be homosexual, or may be trans. Two of the cases are complicated by the existence of delusions that appear to co-exist with the sexual orientation; that both of these cases involve female-bodied people further reinforces the notion that it is the delusions that bring those persons with female anatomy to the attention of authorities within the medico-legal complex.
The problematic nature of this category is related more to the co-optation of the term 'Urning' to refer to a set of behaviors that is distinct from those Ulrichs laid out, rather than in the specific cases used as examples of this diagnosis.
Krafft-Ebing includes seven cases that he diagnosed as 'effemination' or
'viraginity,' a stage of transition between homosexuality and 'androgyny' or
'gynandry,' in which the character of the individual is deeply affected:
.. .characterised by the degree in which the psychical personality, especially in general manner of feeling and inclinations, is influenced by the abnormal sexual feeling. In this group are fully developed cases in which males are females in feeling; and vice versa women, males. (Krafft- Ebing R., 1950, p. 382)
Included in this category are four instances of people who predominantly live as men, and have male anatomy, yet understand and articulate themselves as women to varying degrees. There is also one instance (case 160) of a person who predominantly lived as a woman, yet wrote about a desire to be a man, and occasionally cross-dressed. Case 150 involved a person 'discovered' to be anatomically male who lived, comported herself, and 'passed' as a woman.
The remaining case (130) involved a person who, after an extended illness, began to change "so much so that she gave the impression of being a man
78 The (Un) Usual Body
clad in female garb" (Krafft-Ebing R., 1950, p. 326). Interestingly, the changes
did not extend towards an inclination for sex with women, merely a disinclination
for vaginal penetration, making the inclusion of such a case in a sexuality
category troubling, particularly in light of Krafft-Ebing's assertion that sexuality
is driven by procreative desires. Today, it is likely that the extended illness and
subsequent physical and psychical changes would be determined to have been caused by something such as polycystic ovary syndrome, which can cause the
symptoms described in the case history.
The cases included under this diagnosis have little in common with each other, and suggest that the diagnosis itself does not actually capture a discrete condition. The differences between the anatomical male who easily passed as a woman, the people who lived predominantly in the gender commensurate with their anatomical sex but voiced varying desires to live as the opposite sex, and the anatomically female person whose body underwent changes consistent with increased testosterone levels after a prolonged illness are numerous and offer a significantly more complicated picture. To include this group as a discrete level of a continuum of same sex desire would be comical, were it not something that continues today to justify homophobic and transphobic violence. Krafft-Ebing's conflation of sexuality with gender/sex (and the consequent erasure of trans) are incredibly problematic, and have had significant lasting consequences.
The ten cases Krafft-Ebing categorizes as 'androgyny' or 'gynandry' occupy the most advanced stage in his continuum, a continuum that he clearly distinguishes from intersex conditions:
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Forming direct transitions from the foregoing groups are those individuals of antipathic sexuality in whom not only the character and all the feelings are in accord with the abnormal sexual instinct, but also the frame, the features, voice, etc.; so that the individual approaches the opposite sex anthropologically, and in more than a psychical and psycho- sexual way. This anthropological form of the cerebral anomaly apparently represents a very high degree of degeneration; but that this variation is based on an entirely different ground than the teratological manifestation of hermaphroditism, in an anatomical sense, is clearly shown by the fact that thus far, in the domain of inverted sexuality, no transitions to hermaphroditic malformation of the genitals have been observed. (Krafft-Ebing R. , 1950, p. 389)
While Krafft-Ebing is trying to provide a distinction between this 'most advanced' level and intersex conditions, it is not to posit the argument that intersexed individuals have an anatomical anomaly while those diagnosed with androgyny or gynandry have a psychological one. Krafft-Ebing's roots in biological psychiatry included his advocating for a closer relation between neurology and psychiatry (Engstrom, 2003); "Krafft-Ebing viewed the history of psychiatry as a progressive development culminating in the recognition that the brain is the organ of mental functions and that mental illness is equivalent to disease of the brain" (Marx, 1972, p. 527). Krafft-Ebing, then, is positing that the biological inconsistency of hermaphroditism is found (only) in the genitals, while the biological variance in androgyny and gynandry is found (only) in the brain.
Further, this variance in the brain is also found, to lesser degrees, in all of the levels of his continuum of homosexuality.
Interestingly, the cases at this most advanced level significantly favour those with female anatomy. Krafft-Ebing presents four cases of people who today would likely be termed female-to-male transsexuals, three of which lived almost
80 The (Un) Usual Body
exclusively as men, including the now famous case of Count Sandor. Case 152
involved a male-bodied person whose history suggests that s/he might identify as
either a transwoman or as a gay man, and it is unclear why Krafft-Ebing placed this case in this category. The remaining five cases include histories that clearly
show delusions and hallucinations consistent with schizophrenia. Any cross- gendered behaviours presented cannot be removed from the presence of delusions, suggesting that these behaviours may or may not be manifestations of
schizophrenia.21
While Krafft-Ebing's impact on sexual perversion is seen as significant, his impact on psychiatry as a whole is more controversial. It is argued that the
large textbooks he wrote on general and forensic psychiatry in the 1870s allowed him to dominate the psychiatry of his time (Wettley, 1959; Shorter, 1997;
Kennedy H., 1988); however, his founding of sexual pathology is usually seen as the larger contribution (Wettley, 1959; Furst, 2008). Moreover, his adoption of the French physician and psychiatrist Benedict Augustin Morel's 1857 theory of degeneration, which had tremendous influence on psychiatry at the time - in part because of Krafft-Ebing's promotion - and was largely discredited within psychiatry by the beginning of World War I (Shorter, 1997), has led to his influence being downplayed. In fact some critics have gone so far as to argue that
Psychopathia Sexualis "remains a classic example of psychiatry run off the rails, of the misuse of scientific authority to demonize cultural preferences" (Shorter,
1997, p. 96). Yet, what Krafft-Ebing's work heralds is the reformation of desires
21 There is currently an acceptance within psychiatry that GID and schizophrenia may occur concurrently; however this has not always been accepted, with schizophrenia still being seen as one of a few differential diagnoses for profound GID.
81 The (Un) Usual Body
and behaviors into constructs of identity, or as Foucault (1990, p. 43) writes: "The
sodomite had been a temporary aberration; the homosexual was now a species."
It is also important to note that while the clinical practice of psychiatry in the late nineteenth and early twentieth centuries tended to focus on diagnosis and
treatment, at the time Krafft-Ebing wrote Psychopathia Sexualis he was Professor
of Forensic Psychiatry at the University of Graz in Austria. His position may have
led him to privilege legal considerations over medical ones, as demonstrated by his recording of the legal conclusions of cases he examined rather than the therapeutic possibilities (Furst, 2008). Interestingly, the therapeutic possibilities for the vast array of sexual perversions Krafft-Ebing recorded are still overwhelming thought to be slight. While there is an internationally accepted treatment for severe gender identity disorder (medical transition, possibly including surgery), the disorders contained in the DSM IV-TR section Sexual and
Gender Identity Disorders are routinely thought to be resistant to treatments of any sort. One possible explanation for this is the lack of attention to treatment and focus on punishment that comes from this particular category's interaction with forensic psychiatry; although this is merely a speculative stance, and outside of the scope of this research project.
Degeneracy and Forensic Psychiatry The rise of forensic psychiatry, as part of a psychiatric socio-hygienic prophylaxis movement, was an important factor in the professionalization of
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psychiatry in Germany in the nineteenth century. As borderline cases became of
increasing interest within psychiatry, the boundaries between mental health and
mental illness needed to be defined more clearly. Nowhere was this more
apparent than in the courts, where physicians were called upon to determine
whether a defendant was mentally ill or not. Physicians were required by law to
testify in court when summoned to do so, yet general practitioners were poorly
trained in psychiatric diagnosis. The public's confidence in physicians, psychiatrists, and the entire judicial system was undermined by unreliable
forensic testimony. As Engstrom (2003, p. 153) describes:
When physicians had been called to give evidence in court cases involving mental diseases, they had often been entirely lacking in psychiatric expertise. More damaging still was the inexperience of state physicians and forensic experts, whose duties included the supervision of asylums, interdictions (Entmundigungen), and forensic investigations. Psychiatric ignorance among these medical professionals posed a serious threat to public trust in the judicial system.
In order to maintain public trust in both the courts and psychiatry, educational and professional standards required an emphasis on forensic psychiatry. To this end, psychiatric knowledge was included in state medical examinations, for the first time in 1901, in order to speak to this need for forensic expertise. A need that resulted in a need to police and enforce the imaginary boundary between mental health and mental illness through the medico-legal sphere. This also furthered the cooperation between the two discourses in a manner that helps to solidify both as proper authorities in the production of knowledge/power/truth regarding
sex/gender and sexuality.
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With the implementation of the strict Prussian penal code throughout the
unified Germany governing 'unnatural fornication', sexual behaviour, desire, and
action increasingly became the purview of forensic psychiatry; thus, placing such
behaviours, desires, and actions within this imaginary no-man's land between the
borders of mental health and illness. Along with this border maintenance came
shifts in forensic medicine. As Hekma (1996, p. 217) writes:
Traditionally, forensic medicine was an auxiliary science forjudges; now forensic psychiatry took the initiative. Discussions ensued about the 'personality of the criminal,' as in Cesare Lombroso's theory of the 'born criminal,' and later about the 'sex pervert,' as was found in Richard von Krafft-Ebing's Psychopathio sexualis (1886).
With the professional opinions of forensic psychiatrists increasingly becoming of
utmost importance to courts, particularly in cases involving crimes of a sexual
nature, psychiatry's intervention into sexuality and gendered behaviour was
increased. While the psychiatric profession believed, as Ulrichs did, that
'Urnings' or those with "contrary sexual feeling" ought not to be criminalized,
psychiatrists believed that these cases were medically pathological, and therefore
requiring of treatment. In relation to his own case studies, Westphal (2006, p.
118) argued that due to the forensic importance of perverse sexuality, psychiatrists were duty-bound to devote their attention to all manner of perversions.
The political ramifications of this linking between forensic psychiatry and the inborn nature of the 'pervert', particularly in light of psychiatry's embrace of degeneration theory, were significant and long lasting. By including psychiatry in
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state medical examinations, psychiatrists extended the reach of their profession to
include a much larger group of primary care physicians (Engstrom, 2003). In this
way, the assumptions and opinions of psychiatrists, including degeneration theory
and sexual perversion, could more easily be spread to the larger society. As Otto
Binswanger, one of the preeminent psychiatrists emerging in the 1890s argued:
"They not only needed to diagnose their patients, but also to assess the 'social and
forensic significance' of psychiatric cases in order to preempt suicide and criminal
behavior" (Engstrom, 2003, p. 170).
A new generation of psychiatrists emerged in the 1890s, with important
differences from the previous generation. These men entered university after the unification of Germany, and were raised within an era of middle-class concern regarding social democracy, yet an era that also had a heightened social
consciousness. As part of their academic training, these men were the first
generation to be educated in Darwinian concepts. As Engstrom (2003, p. 175)
argues:
The mix of social ferment and Darwinian theories of heredity proved fertile ground for the development of the ideas of social Darwinism, degeneration, and cultural pessimism that became so prevalent among the educated middle classes in Wilhelmine society in the years prior to World War One. By 1890 the influence of these younger psychiatrists was making itself strongly felt within the profession, and by 1905 it had become predominant.
The etiological implications of Darwinism occupied the attention of this new generation of psychiatrists, leading to an overall interest in hereditary theories of mental illness. The importance of heredity in mental disorders was
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compounded by the increased social consciousness. In Germany, this social
consciousness culminated in a shift in the superordinate unit, so that it was not the
danger to the individual or the family that drove psychiatric interest, but the
danger to the larger body politic (Doerner, 1981).
In ubiquitous statements, psychiatrists expressed their great concern about the dangers that "congenital psychopathic defects" (psychopathische Minderwertigkeit) posed for the social life of the nation. Coupling these concerns with theories of degeneration, they worried about supposedly irreparable damage done to patients and extrapolated their assumptions to the larger social and national body. (Engstrom, 2003, p. 176)
The dangers to the social life of the nation posed by hereditary mental illness, or
congenital psychopathic defects, were alarming, but when coupled with theories
of degeneration, the need to efficiently determine who was at risk for psychiatric
illness and what the appropriate treatment course was became paramount not only
for the health and well being of the mentally ill patient, but for the health and
well-being of the larger social and national body.
The push for prophylaxis and socio-hygienic reform functioned as a shift
in therapeutic work (Engstrom, 2003). Because psychiatry could not be expected to cure congenital defects, its therapeutic work needed to be directed at another
goal: the prevention of such defects. Prophylaxis meant both the prevention of mental illness, as well as the protection of the community from the potential dangers of psychiatric patients before any actual danger had manifested.
Institutionalization can then be understood within this context as a means of prophylaxis both through its prevention of sexual reproduction, thereby
86 The (Un) Usual Body countering hereditary degeneration, and through its removal of potentially dangerous patients from larger society (Engstrom, 2003).
Who ought to be included in the prophylactic institutionalization of individuals with mental disorders was also complicated by theories of degeneration and heredity. In the interests of public security, those individuals with milder, borderline psychiatric symptoms or disorders needed to be correctly diagnosed and treated in order to prevent them developing potentially dangerous mental illnesses. The creation of the university polyclinic, a reform suggested by
Wilhelm Griesinger and instituted by Carl Westphal, allowed for an unprecedented increase in the observation, diagnosis, and treatment of just such cases (Doerner, 1981). As Engstrom (2003, p. 193) argues: "It was in polyclinics that the borderline states inaccessible even to the regular university psychiatric clinic could be brought within the pale of psychiatric science and be diagnosed, treated, and if necessary steered to more specialized facilities for further treatment."
Moving from predominantly large rural based asylums, to a mixture of asylum types that also included smaller urban based institutions, as well as university based outpatient clinics (polyclinics) was one of a series of changes that dramatically affected psychiatry. Coupled with a shift from curability to duration of treatment as the single most important medico-administrative criterion though which a patient could be assigned to a treatment facility (a change that was yet to come), the introduction of the outpatient clinic affiliated with a teaching university, run by the psychiatric chair, allowed students easy access to clinical
87 The (Un) Usual Body instruction, the sharing of diagnostic and treatment protocols between institutions, as well as an increase in the numbers and types of patients seen. All of these factors produced the necessary conditions of possibility through which psychiatry could successfully establish itself as a professional discipline within medicine on par with other medical specialties (Dietze & Voegele, 1965; Doerner, 1981;
Engstrom, 2003). They also produced the conditions of possibility through which sexual difference has become entrenched in psychiatry as sexual perversion.
The creation of the university polyclinic allowed for an unprecedented increase in the observation, diagnosis, and treatment of borderline cases, and the line between mental health and mental illness became an increasingly important part of the psychiatrist's work in the latter part of the nineteenth century. The reputation of the profession depended upon the psychiatrist's ability to distinguish between an individual truly suffering mental distress and an individual feigning madness. With the increasing social problems of alcoholism, sexual promiscuity, and increasing criminal behaviors witnessed from the 1880s, more subtle variations of the neuroses on the border of sanity and insanity became a pressing issue. While this interest in prodromal states was not new, the interest in recognizing the early signs of madness combined with an interest in isolating physical characteristics of hereditary degeneracy, offered a socio-cultural justification of the expansion of professional jurisdiction over all forms of mental and social deviance as necessary for public hygiene and public safety. As well, the claiming of jurisdictions over these margins enhanced the abilities of
88 The (Un) Usual Body psychiatrists to speak with authority about issues that moved further and further away from the margins of madness.
As instruments of social prophylaxis, polyclinics represented an interface at which the disciplinary technologies of the clinic became enmeshed with larger forces of social control and normalization in society. In other words, polyclinics not only supplied advice on mental hygiene to the public at large, but also enhanced the abilities of professionals to speak with authority about issues that seemed to lie at and even beyond the margins of madness. They helped psychiatrists lay claim to jurisdiction over these margins and to colonize them with the disciplinary technologies of clinical psychiatry. (Engstrom, 2003, p. 198)
The shift from rural asylum based warehousing of patients to university run polyclinics increasingly allowed psychiatry to speak to socio-hygenic prophylaxis. This shift towards public safety and hygiene, coupled with the influence of law produced the desire for psychiatry to increasingly construct the exception - the psychopath, the pervert, the criminal. The rise of degeneration theory, forensic psychiatry, and the colonization of the borderland between mental health and illness culminated in this need to produce someone, an outsider, an exception, that allowed the remainder of the citizenry and the state to comfortably maintain the status quo. According to Alexander & Selesnick (1966, p. 174), the desire of psychiatrists to avoid confronting issues of sexual force within a patriarchal (and misogynistic) society turned them instead to consider exceptions:
"the psychopath, the pervert, and the degenerate genius; the comforting implication that could be derived from these studies was that what is true for these exceptions does not hold for ordinary, 'normal' citizens." The theory of
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degeneration allowed biology to speak to just such exceptions. According to psychiatrists at the end of the nineteenth century, the exceptional psychopath,
imbecile, or pervert had some kind of major mental illness; illnesses that had
strong biological and genetic foundations.
With the rise of forensic psychiatry, however, the degeneration theoreticians took this a step farther. It was not merely that major mental illnesses had a biological and genetic component, but they asserted that these illnesses got worse as they were passed from one generation to the next causing a progressive degeneration within family trees and the entire population as a whole. This was very risky ground for psychiatry, and as Shorter (1997) notes, had catastrophic consequences when these ideas were appropriated by politicians and used to justify the agenda of social cleansing.
While degeneration theory was being discredited within psychiatry by the beginning of World War I, discussions of degeneration had moved outside of academic psychiatry and been taken up by the boulevard press where the public seized with horror on this idea of degeneration, leading the educated middle classes to implicitly believe that unless action was taken to prevent further polluting of the gene pool, European society was doomed (Shorter, 1997). Late in his career, Krafft-Ebing reversed his position both on degeneration theory and on the pathologization of same-sex desire (Robinson, 1950), but his reversal came too late; his previous work had already formed much of the basis for future conceptions of same-sex desire and cross-gender/sex behavior. His previous
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support of Morel's degeneration theory also had effects that continued on long
after he denounced it.
By the end of the nineteenth century, psychiatry had embraced
degeneration theory and expanded it to include much of psychiatry. "The idea of
degeneration began to bolster such social policies as sterilization, euthanasia, and persecution of the Jews on the grounds that they were a "degenerate" people"
(Shorter, 1997, p. 94). These political actions continued well past the World War I psychiatric condemnation of degeneration theory, with the Nazi genocide of
'degenerate' 'races' (Jews and Gypsies) and individuals (such as homosexuals, the mentally ill or the mentally incompetent) based on this theory (Alexander &
Selesnick, 1966; Kennedy H. , 1988).
Krafft-Ebing's distinction between perversity and perversion, linked with his advocacy of the theory of degeneration, also continues to have significant effects. In his understanding of sexual activity that is outside of acceptable procreative activities as perversity, while having an inversion of sexual instinct is perversion - whether the person engages in sexual acts or not, Krafft-Ebing has marked homosexuality and trans embodiments as perversion. This understanding has continued today, as the stigma of being trans or of being homosexual is strongly linked to perversion; a linkage that is further demonstrated within the
DSM categories, as discussed in Chapter 3. This marking of perversion has an interesting moral component that needs to be explored further. While Krafft-
Ebing changed his stance on this in later years, as he did with degeneration
91 The (Un) Usual Body theory, he had already set in motion a wave of psychiatric and public opinion that has not significantly changed more than one hundred years later.
Moreover, eugenics programs in many countries, including Canada where the Alberta Sexual Sterilization Act was not repealed until 1972, can also be
linked to an underlying belief in the heredity of certain, 'degenerate' conditions, particularly of mental incompetence. The continued requirement of sterilization prior to changes of gender on birth records in Canada is perhaps a further example of an on-going haunting of policy from past eugenics and degeneration theories.
Westphal's coupling of moral insanity and imbecility with contrary sexual instinct, as discussed previously, adds yet a further dimension to this contextual understanding of sterilization and eugenics in relation to contemporary trans identified Canadians.
Magnus Hirschfeld, Havelock Ellis, Iwan Bloch
While readers might expect that the historical tracing of modern Gender
Identity Disorder runs from Krafft-Ebing through to the sexologists that succeeded him, such as Magnus Hirschfeld, Havelock Ellis, and Iwan Bloch, this tracing takes a different path. While these four men, along with Sigmund Freud, have been hailed as "the foremost figures" in sexual science of the twentieth century (Robinson, 1950, p. ix), Hirschfeld, Ellis, and Bloch have had little, if any, impact on clinical or forensic psychiatry. The contributions of these men to sexology and sexual science are extensive; their contributions to psychiatry, however, are not. While the work of sexual scientists, such as these three men, has
92 The (Un) Usual Body been taken up by scholars, psychologists, and therapists, it is my argument that
sexology's contributions to psychiatry, and therefore to our current medical, legal, and citizenship discourses, can largely be traced through the psychiatrists Carl
Westphal and Richard von Krafft-Ebing. Moreover, the contributions of other sexologists have been short-lived, as psychiatry has fairly consistently taken the position that sexual differences (including trans embodiments) are resistant to psychotherapy, particularly psychoanalysis, and that the only potential interventions are medically oriented (medication and/or surgery).22 Because, as I discussed earlier, Krafft-Ebing is predominantly influenced by Ulrichs and
Westphal (and by Kertbeny's term homosexual), other contributions to the literature of sexology play marginal, or perhaps tangential, roles in the subsequent development of the current (mis)understanding of transsexuality within psychiatry, law, and citizenship. Interestingly, one notable exception to this is the way that Magnus Hirschfeld's (1923, p. 14) term "seelischer Transsexualisms "
(psychic or psychological transsexualism) has been co-opted within contemporary psychiatry to replace Krafft-Ebing's terms; however the rest of Hirschfeld's work has had little, if any impact on the DSM, as discussed in the following chapter.
For these reasons, the contributions of these sexologists, among others, are outside the scope of this research, and are not considered further.
For example, treatments for extreme sexual sadism and predatory pedophilia have at times included either surgical or chemical castration.
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Chapter 3: Psychiatry post 1900 Twentieth Century Psychiatry
Around the turn of the century, psychiatry was undergoing more changes.
The idea that mental illness was a single disease known as insanity was long
gone, but so too was the belief that anatomical or biological causes of mental
illness would be discovered allowing for both the curing of current disease and
the prevention of future disease. While the profession was moving from the biological model to a more psychological model, great strides were continuing to be made in experimental psychology, anatomical studies, clinical practice, and physiology. These developments, combined with a growing social consciousness, led to an increasing push for social and mental hygiene, and in particular, psychiatric socio-hygienic prophylaxis.
In this chapter, I focus on the translation from nineteenth century psychiatric understandings of trans embodiments to the American Psychiatric
Association's (2000) most recent edition of the DSM. This translation begins in
Germany, where the German's continued to lead the world in psychiatry until the
Second World War. With the condemnation of research stemming from Nazi atrocities, the condemnation or suspicion of researchers remaining in Germany, as well as the emigration that occurred as many professionals fled Europe, the world power in psychiatry shifted to the United States, following the dramatic influx of psychiatrists, physicians, and scientists. Thus, the most influential publication in clinical psychiatry today comes from the American Psychiatric Association - the
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DSM, which is currently under revision with the fifth edition due for publication in May 2013.
What is of particular importance in the telling of this history in this way is the linkages between the idea of disorder, as it has developed through 19th
Century German psychiatry and the different iterations of the DSM, with the necessity of the diagnosis for those transsexed individuals who desire/ require medical transition. By suturing the (mis)understanding of trans embodiments developed by Krafft-Ebing and the return to a biologically based Kraepelinian psychiatry in the more recent editions of the DSM to the work of legal activists, I am engaging in a transing that offers a significant break from conventional strategic legal initiatives as well as traditional historical tracings of either psychiatry or trans-ness. Transing these discourses enables me to argue that the notion of disorder presented in the ASM is not in fact the notion of disorder that is foundational to the (mis)understanding of trans bodies in contemporary psychiatry, but that any current (mis)understandings of disorder are resistant to such a non-moral reading because of their foundations and reliance on descriptions and linkages stemming from the 19th Century German socio-hygienic prophylaxis movement in Krafft-Ebing and Kraepelin. To do this, I discuss the way that the erasure of the investment in the stability of sex of the non-trans body functions to (re)inscribe the stigma of moral insanity and perversion while ostensibly offering mental disorder as a morally neutral term. In this way the non- trans body can be comfortably established as Calder's mobile, making its sex
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seem natural and stable; while producing the trans body as the mutable, disingenuous, and deceptive stabile.
Sigmund Freud
It is important to acknowledge that Sigmund Freud (1856-1936) was researching at this time. For those who have traced the history of transsexuality through sexology Freud is a very significant figure. For example, Prosser (1998, p. 150) states: "It is surely in Freud that the lesbian and gay reading of sexual inversion as a metaphor for homosexuality takes root." My historical tracing suggests a significantly different path. While Freud's work is often considered of paramount importance in relation to psychology, Freud was a controversial figure in psychiatry well into the twentieth century. His initial focus was on neuro anatomy and neuro-pathology, but this shifted around 1895, as Freud reluctantly began moving from an understanding of physiology as the cause of mental illness to considering psychology as the root of mental illness (Strachey, 1989). Freud went on to found psychoanalysis, offering psychology one of its most powerful treatments (and diagnostic tools) to this day. Modern psychiatry emerged within this shift to psychology from biology as well, although Freud's impact on this foundational shift in psychiatry is controversial. There are two schools of thought on Freud's contributions to psychiatry: on the one hand, Freud's turn from biological to psychological causes and treatments for mental illness has been seen as instructional, thus making him a pioneer in psychiatric history (Altschule,
1965; Stone, 1997); on the other, Freud's contribution is seen as limited, as his
96 The (Un) Usual Body turn to psychology occurs in conjunction with larger changes in psychiatry brought about through the shift from biological to psychological models.23 Most importantly in relation to this work, is the distinction between the work of Freud and the work of Emil Kraepelin (1856-1926). While both men have been lauded as two of the "great figures" of modern psychiatry, the schools each founded were often at odds with each other (Myerson, 1944). As Shorter (1997, p. 100) argues:
"It is Kraepelin, not Freud, who is the central figure in the history of psychiatry."
Shorter's summary dismissal of Freud is polemic in nature, yet it points specifically to ways in which psychoanalysis is (once again) seen as controversial within psychiatry. Freud began as a neurologist, who was uninterested in patients with psychotic illness. His largest contribution, psychoanalysis, was never effective for severely mentally ill patients, and has not remained a staple in clinical psychiatry.
Psychoses, seen by many as the cornerstone of psychiatry, are not very accessible to psychoanalysis, or hypnosis (Ackerknecht, 1968; Stone, 1997), leading to Freud's lack of interest in them; a lack of interest that has been used to discredit him within clinical psychiatry, a system that often places an enormous value on psychoses. Contrary to Bernice Hausman's (1995) position that transsexuality appeared as a response to the technological advances in medicine of the mid twentieth century, transsexuality has been categorized within psychiatry as a personality disorder rather than a psychosis, and its place in psychiatry has been entrenched since its appearance, under the terms
" Some would even go so far as to suggest that Freud's work was really merely a reiteration (and perhaps explanation) of the work done by Wilhelm Griesinger in the 1850s and 1860s (Dietze & Voegele, 1965).
97 The (Un) Usual Body effemination/viraginity and androgyny/gynandry, in Krafft-Ebing's (1905) Text-
Book of Insanity, first published in 1879. As well, personality disorders in general increasingly gained significance within clinical psychiatry throughout the twentieth century. While some of this significance can be traced to the adoption of psychoanalysis as a diagnostic and treatment tool, not all of the interest came from analysts. Moreover, transsexuality, much like psychosis, is not very accessible to psychoanalysis or hypnosis, with the only internationally recognized treatment for severe manifestations of the disorder being somatic transition. Thus, while Freud had a significant impact upon sexology and our (mis)understandings of some sexual 'pathologies,' his impact on psychiatry - and through that transsexuality - appears less substantial. Notwithstanding the tremendous importance placed on psychoanalysis in American psychiatry from the 1920s into the early 1970s, the return to biological psychiatry that began in the United States in the 1950s with the discovery and production of antipsychotic drugs, has further reduced the importance of Freud and psychoanalysis to clinical psychiatry.
Modern psychiatry's reliance on anatomy, medicine and pharmacology, and, increasingly, its return to biology, makes Freud's impact on psychiatry even more difficult to gauge. While his impact on American clinical psychiatry in the mid twentieth century was significant, the return to biological research, aetiologies, and treatments have removed much of Freud's influence. Freud's greatest contribution, then, might be to have begun the increasing schism between psychology and psychiatry as modern professions. When considering transsexed bodies and their diagnosis and treatment, it is important to note that psychiatry
98 The (Un) Usual Body and not psychology is seen as the only acceptable route to medical transition
(WPATH, 2009). With the biological return in the mid twentieth century came an increasing reliance on other medical specialties in the treatment of severe GID
(such as endocrinology and plastic surgery), which serves to reinforce psychiatry
(as a medical specialty) as the legitimate authority and producer of knowledge on trans embodiments.
Emil Kraepelin
In contrast to Freud, Emil Kraepelin, represented medical psychiatry; through his establishment of an accepted nosology and prognosis, Kraepelin brought the study of psychiatry into line with other fields of medicine through the development of clinical syndrome studies (Myerson, 1944). Emil Kraepelin
(1856-1926) was one of the new generation of Darwinian trained psychiatrists emerging in the 1890s. He engaged in neuro-anatomical studies in psychiatry up until 1882 when he shifted his focus to Wundtian24 psychophysiological research
(Ackerknecht, 1968). As the internationally recognized leader of German psychiatry at the end of the nineteenth century (Marx, 1994; Hippius, Moller,
Miiller, & Neundorfer-Kohl, 2008; Stone, 1997), Kraepelin's influence was exerted over the future development of psychiatry into the twenty-first century through his textbook 'Komendium der Psychiatries the forerunner of the modern classifications of mental disorders DSM-IV and ICD-10 (Burton N. , 2010).
Wilhelm Maximilian Wundt (1832-1920) was the founder of modern experimental psychology and a mentor of Kraepelin's (Wallace & Gach, 2008). Wundt is considered by some as the founder of modern psychology (Shorter, 1997).
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Kraepelin's nosology was made possible through his institution of meticulous recordkeeping on diagnostic cards (Zdhlkarte) for each patient.25 The cards were continually updated, even after the patient had left the clinic, in order to provide the longitudinal data that was crucial to Kraepelin's project. It was through this data collection and classification that, according to Shorter (1997),
Kraepelin offered the single most important insight in major psychiatric illness in the late nineteenth and early twentieth centuries: that through the systematic study of large numbers of cases the natures of the several, different, principle types of mental illnesses, and their courses could be appreciated. With his interest in longitudinal studies of the development of mental diseases, Kraepelin's main focus was on patient files, surveillance wards, admissions and evacuations. In longitudinal studies, Kraepelin saw the potential to isolate specific illnesses and nosological categories. As Engstrom (2003) notes, the construction of a comprehensive nosology based on disease course required access to both the broadest selection and the largest number of patients, as well as their histories, admission files, and copious detailed clinical notes, in order to make a satisfactory comparison and reliable grouping. Through the use of systematic records and descriptions, combined with statistical methods to evaluate clinical data,
Kraepelin created the foundation for modern clinical psychiatric research
(Hippius, Moller, Muller, & Neundorfer-Kohl, 2008).
25 While Kraepelin instituted the use of the cards in clinical practice, it is important to note census cards, also called Zahlkarte had been used by state officials in many parts of Germany for many years prior to Kraepelin's use of them as a clinical research tool (Engstrom, 2003). It was his use of them in the clinical setting, with the recording of clinical observations, that made Kraepelin's use of them exceptional.
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Access to this broad selection of patients and their longitudinal data was only possible because of the changes in clinical psychiatry brought about in the years following Griesinger's reform platform combined with the additional reforms Kraepelin instituted, as well as the changing climate of social consciousness and the increased desire for socio-hygienic prophylaxis. The changes implemented by Kraepelin are, therefore, connected to the larger moral project and the classifications emerging from this system are also similarly imbued. Griesinger's vision of the university polyclinic, brought to fruition by
Westphal, was the initial condition of possibility for Kraepelin's work, yet he needed access to significantly more data in order to instill his work with sufficient scientific authority.
By reorganizing the administration of patient files, Kraepelin was able to establish a second essential precondition for his collection and comparison of patient records (Engstrom, 2003). Kraepelin also instituted changes in admission and transfer policies that ensured a quick turn-over of patients; something that
Griesinger had tried unsuccessfully to implement years earlier (Doerner, 1981).
This was important for both research and teaching, as patients admitted earlier in the course of their illness allowed for the documentation and demonstration of stages of illness rarely seen. Within the larger climate of prophylaxis, the earlier interventions were gladly accepted; without such a context, Kraepelin, like
Griesinger, may not have lived to see his reforms adopted.
With the formal inclusion of psychiatry in the state licensing examinations in 1901, psychiatry was elevated to academic parity with other medical
101 The (Un) Usual Body specialties, such as internal medicine, surgery, and gynecology (Stone, 1997).
Without a reliable nosology, psychiatric education and research would likely not have achieved such parity. In light of this, the importance of Kraepelin's work should not be understated. As Alexander & Selesnick (1966, p. 165) point out:
"he demonstrated repeatedly the importance of utilizing in psychiatry the medical approach of detailed observation, careful description, and precise organization of data. Without this orientation psychiatry could never have become a clinical, disciplined specialty of medicine."
Kraepelin also had a remarkable impact on the production of psychiatric research. Throughout his esteemed career, Kraepelin surrounded himself with the most successful researchers in as many complimentary sciences as possible. With his move to the Munich clinic in 1903, and the construction of the German
Psychiatric Research Institute in 1904, Kraepelin pulled together a team of researchers and students who went on to influence psychiatry around the world for generations. While his main interest was in experimental psychology, he recruited the foremost researchers in many different fields, thereby using
"methodological diversity to the advantage of clinical psychiatry" (Hippius,
Moller, Miiller, & Neundorfer-Kohl, 2008, p. 84). Establishing separate departments for experimental psychology, neuropathology (including a microscopy laboratory), chemistry, serology, genealogical demography, and a large archive for case histories, Kraepelin created a research environment that went on to nurture the discoveries of schizophrenia (although he termed this
Dementia Praecox), manic-depression, Alzheimer's disease, and Jakob-
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Creutzfeld disease, along with numerous important advances in the diagnoses, etiologies, and treatments of psychiatric illnesses. Combining his background in anatomical pathology with his research in experimental psychology, Kraepelin brought a complex perspective to his medical research. As Shorter (1997, p. 108) notes:
In addition to providing a new way of classifying illness, Kraepelin's structure insisted that there were a number of discrete psychiatric illnesses, or diseases, each separate from the next. Depression, schizophrenia, and so forth were different just as mumps and pneumonia were different. ... A medically oriented psychiatrist believed in approaching psychiatric illness just as a cardiologist would approach heart disease, while remaining mindful that the psyche is subject to cultural shaping in ways that the heart is not.
An important consequence in the recognition that the psyche is subject to cultural shaping is that the morally driven prophylaxis movement that enabled these changes in psychiatry brought with them a moral stigma. While the establishment of psychiatry as a medical specialty functions as a scientization of the knowledge produced in the field of psychiatry, this occurs within the foundation of moral coding. It is not merely a deviation from normal, but the subsequent negative impact on the entire community that is folded into the notion of mental disorder through Kraepelin's nosology; a nosology that was built through a moral colonization of the border-land between sane and insane.
Ultimately, Kraepelin reformed the university psychiatric clinic into a research facility that functioned as a transit station designed to increase the number of patients a researcher could study through rapid admission, diagnosis,
103 The (Un) Usual Body and discharge (Engstrom, 2003). This shift in the clinic's purpose allowed
Kraepelin and his associates to make astonishing advances in psychiatry that have not been replicated, and are unlikely to be rivaled. The clinical importance of
Kraepelin's program was not merely in its ability to classify patients, but in its implications for diagnosis and prognosis (Engstrom, 2003); with the return to biological psychiatry in the late twentieth century, many of Kraepelin's categories continue to hold sway today, making his contribution that much more important.
Kraepelin's reforms also allowed for a further increase in the borderline patients that had garnered the interest of psychiatry at the turn to the twentieth century. While initially Kraepelin's focus was based in an organic approach to mental illness, his interest in experimental psychology allowed him to construct a more complex etiological picture; one that withstood the shifts in psychiatry throughout the twentieth century. Kraepelin's discussion of contrary sexual instincts, however, is largely taken from Krafft-Ebing's Psychopathia Sexualis, and Westphal's (1869) published case studies. Kraepelin viewed contrary sexual instinct as a psychopathic state that reflects a disturbance of volition and action, which "refers to those sexual propensities, appearing mostly in youth, exhibited by individuals of the same sex for each other, with an indifference or even abhorrence of the opposite sex" (Diefendorf, 1907, p. 510). Kraepelin considered this to be an uncommon condition that was far more prevalent among 'men,' likely had both congenital and environmental factors, and that developed from a
26 The use of a gendered term such as 'men' is problematic, however I use it here as this is the way that psychiatry has tended to discuss transsexuality, such that the 'men' that Kraepelin discussed were people who had been deemed male at birth, but who understood themselves to be women. This is a trend that continues today with the use of terms such as "male transsexual" being used to refer to MTF transsexuals regardless of hormonal, genital, or legal status.
104 The (Un) Usual Body state of degeneracy. Kraepelin based his findings on the published works of other researchers, offering no original case histories of his own. For a researcher so committed to documenting, archiving, and analyzing vast amounts of longitudinal data, Kraepelin's discussion of contrary sexual instinct stands in stark contrast.
The conflation of sexual desire with gendered behavior so obvious in
Krafft-Ebing's and Westphal's work is also apparent in Kraepelin's (Diefendorf,
1907, pp. 511-512) writing:
Where homosexuality is very pronounced, the individual may experience a change of personality, a man becoming feminine in manner, gait, and countenance. He becomes affected in manner, vain, coquettish, takes great pains with his personal appearance, desires to be in fashion, wears flowers, and uses cosmetics. Some develop a fondness for women's employment, do needlework, arrange their rooms after the fashion of a woman's boudoir, and they may even dress in women's clothes, padding their hips and breast, talk in a falsetto voice, and in every possible way simulate feminine traits.
Persons exhibiting this 'advanced degree of homosexuality,' Kraepelin noted, are called by Krafft-Ebing 'androgyny', with the female counterpart called
'gynandry'. Kraepelin also argued that other forms of sexual perversity, such as fetishism, may also be present in the "confirmed pervert" (Diefendorf, 1907, p.
513); problematic understandings that continue today in both commonsense situations and within the psychiatric profession, leading to the equation of trans embodiments with sexual perversion.
Interestingly, Kraepelin made a distinction between sexuality and gendering within this diagnostic category, yet he simultaneously erased it.
Consider Kraepelin's construction: "It is not a difficult matter to identify
105 The (Un) Usual Body homosexual patients where there has been a marked transposition of the traits characteristic of the sexes. Yet normal sexual instincts may exist in spite of such transposition" (Diefendorf, 1907, p. 513). Kraepelin's argument can be paraphrased as: 'it is not difficult to identify A (homosexuality) where there is B
(cross-gendered traits). Yet C (heterosexuality) may exist in spite of B (cross- gendered traits).' However, in an interesting disavowal of his own equation, he then goes on to call all people with cross-gendered traits homosexuals.
Apparently, according to Kraepelin, the sexual desire that makes the person homosexual can be absent while the gendered traits remain. Kraepelin's formulation, therefore, holds that homosexuality is defined by same-sex sexual desire, but that gender-crossing behaviors, as a symptom of homosexuality, may be present whether the same-sex sexual desire is present or not. Kraepelin's insistence that this person is still homosexual, without the necessary sexual desire, functions less as an interesting conflation of sexuality and gender/sex and more as a disavowal of the difference between sex/gender and sexuality. While Kraepelin knows that the same-sex desire that defines homosexuality is not present in some cases of gender inversion, he none the less believes that the gender inversion is a symptom of homosexuality, and acts on that belief by diagnosing homosexuality.
Put another way, Kraepelin has suggested that not all B's are A's, and that some
B's are C's, but then denied those statements by summarily equating B with A.
What makes Kraepelin's move even more perplexing is his attempt to distance the act from the desire in other ways; Kraepelin argued, along with
Krafft-Ebing, that there is a distinction between perversity and perversion, with
106 The (Un) Usual Body the homosexual individual exhibiting perversion while the practice of homosexual acts, such as occurs in sex-segregated facilities like prisons, is merely perversity.
This distinction between act and identity appears likewise in Krafft-Ebing's work, and functions to expose the fallacious reasoning present in this position; reasoning that is required in order to support the disavowal. If homosexuality is defined by same-sex sexual desire rather than by sexual acts, then the individual who acts without desire (as in the case of prisoners whose desire is merely for sexual gratification, not for the individual providing that gratification) is not homosexual.
In the same manner, then, the person who exhibits cross-gendered behavior without same-sex sexual desire, regardless of sexual actions, should likewise not be considered homosexual; yet, in Kraepelin's construction, this person is homosexual. By allowing gender-crossing behaviors to stand as a symptom of homosexuality, Kraepelin is caught in a tautological argument in order to support his position: Kraepelin's formulation is that the person's homosexuality is evidenced by their gender-crossing behavior, and their gender-crossing behavior is a symptom of their homosexuality. The person is the identity because of the behavior and the behavior indicates the identity. A circle that allows Kraepelin to ignore his initial construction that homosexuality requires a particular desire.
If homosexuality requires same-sex sexual desire, and same-sex sexual desire is not present, then how can Kraepelin justify saying that it is? It appears that he has based this argument solely on the premise that if gender-crossing is present, then homosexuality is present, whether or not same-sex sexual desire is.
While Kraepelin may have believed this to be true, recognizing the tautological
107 The (Un) Usual Body position of gender-crossing as both being produced by homosexuality (as its symptom) and evidence for homosexuality, ought to help uncover the disavowal and slippage at work. With the disavowal of sex/gender as distinct from sexuality,
Kraepelin's presentation forecloses on psychiatry's understanding transsexuality as separate from homosexuality. Moreover, the label of perversion inheres, whether the person engages in any perverse acts or not, through the conflation of gendered behavior with sexual desire, and the coding of this sexual desire as perversion.
This functions to erase the investment in a stable binary of sex in the non- transsexed person (and in a system that privileges non-transsexed embodiments, such as psychiatry) while constructing the transsexed body as heavily invested - so invested that the person will undergo several invasive and extensive medical interventions in order to play out that investment in the flesh. As I have argued elsewhere: "The desire to change one's body is used as proof of ultimate investiture; however, I argue that the medico-legal system's inability to accept or understand fluidity or instability of sex demonstrates a much greater investment"
(Mandlis, 2011, p. 3). While the non-transsexed body may take for granted the binary sexing of bodies, the comfortable acceptance of the sexed body into the natal assignment "allows for the investment in the sexing of that body to be erased" (Mandlis, 2011, p. 4). The erasure of the non-trans body's investment produces the trans body as the only body invested in sex. "Insofar as this investment appears obvious, the transsexed person is deemed devious, in that s/he is deceiving people in regards to his/her 'true' sex" (Mandlis, 2011, p. 4). The
108 The (Un) Usual Body authority of the psychiatrist, as the producer of knowledge regarding the sexing of the transsexed body, therefore becomes significantly more important. The erasure of the psychiatric investment in the stable sexing of bodies functions both to verify psychiatric knowledge as legitimate (as a producer of Truth) and to discount any other knowledges regarding the sexing of bodies.
Kraepelin's departure from Krafft-Ebing lies only in his discussion of treatment. Where Krafft-Ebing argued that treatment was not effective in the majority of cases, Kraepelin discussed hypnotic suggestion as offering a more favorable prognosis than previously thought. However, progress, according to
Kraepelin (Diefendorf, 1907, p. 514), "is acquired slowly and with difficulty", and "One should remember that even though marked improvement or recovery takes place, the original defective basis still remains." This means that while treatment may be possible, cure is not. Curability, however, has never been psychiatry's strong suit; as Wallace & Gach (2008, p. xxxii) note "psychiatry, like internal medicine, manages infinitely more than it cures." Interestingly, the incurability of trans embodiments as mental disorder persists through DSMIV, although the draft of DSM V offers to end this. The persistence of defect has also been used in law to deny legal remedy and healthcare to trans people in Ontario, as discussed in detail in phase 3.
Rose (2007) argues that the advent of psychoanalysis opened up a moral space between the organic space of the brain and the social space of conduct.
However, this moral space functions in a way very similar to the classical age's
27 Hogan v. Ontario (Health and Long-Term Care), (2006) HRTO 32; (2006), 58 CHRR 317
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"ethical power of segregation, which permitted it to eject, as into another world, all forms of social uselessness" (Foucault, 1973, p. 58). The moral judgment of
"social uselessness" appears to inhere in those deemed mad (Mandlis, 2011). The distinction between madness and illness evokes the notion of social uselessness and with it the moral coding of the incurable disorder becomes clearer.
Certain mental illnesses lend themselves to the notion that the person could choose not to act in ways consistent with the illness. For example, some would argue that those who are diagnosed with gender identity disorder (American Psychiatric Association, 2000) could "choose" to hide their discomfort and live life in the gender to which they were assigned at birth. In this way the illness can be understood as underlying the belief of the person's sex, whereas the moral judgement of choice is seen as functioning at the level of behavior. The illness of the girl with gender identity disorder makes her think that she is a boy; her behavior, acting as if she is a boy or seeking physical transition, is madness. (Mandlis, 2011, p. 10)
In this way, the persistence of defect functions to make visible the foundational morality at work within the psychiatric system. While the American
Psychiatric Association (1980, p. 6) has stated that a mental disorder is "a clinically significant behavioral or psychological syndrome or pattern that occurs in an individual and that is typically associated with either a painful symptom
(distress) or impairment in one or more important areas of functioning
(disability)" and that social deviance "is not by itself a mental disorder", this is somewhat belied by the continuing construction of the transitioned transsexed body as mentally disordered. Medical transition is designed to alleviate the
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symptoms and impairment, yet the person is still considered within this system to have GID. This designation of disordered without the required symptoms and impairments that such a diagnosis requires raises the spectre of Krafft-Ebing and
Kraepelin's distinction between perversity and perversion; perversion persists, whether the behaviour of perversity is present or not. GID persists, as a form of perversion, whether the impairment and symptoms that are required for the diagnosis persist or not, therefore suggesting a moral foundation to the clinical diagnosis.
The American Psychiatric Association
The Germans remained the undisputed world leaders in psychiatry well into the twentieth century; however, the Second World War, and the atrocities enacted by the Nazis, pushed German psychiatry out of the driving seat. "In the
United States, European models held sway until the 1930s, which means that there were relatively few distinctive American psychiatric traditions - or few at least that were copied elsewhere" (Shorter, 1997, p. 15). The move of many psychiatrists, psychologists, physicians, and scientists from Europe to America positioned America to take over as the world leader. With very few academically based psychiatry departments in the United States until the 1940s (the exceptions
28 Transition alleviates impairment in so far as the person is more comfortable as the sex in which they are presenting, and offers the possibility for some of preventing difficulties arising due to other people assuming their sex incorrectly (while many term this 'passing' this is a problematic transphobic term that functions to (re)inscribe the natal assignment as primary. "Passing' then denotes that the person is not really the sex they appear, but in fact the sex they were assigned at birth.).
Ill The (Un) Usual Body being Johns Hopkins, the Menninger School, Michigan, Yale and Harvard)
(Wallace & Gach, 2008), the influx of educated practitioners and scientists helped to increase the exposure of students to clinical psychiatry, thereby assisting
America in taking the lead.
First published in 1952, DSM I included sexual deviation as a subcategory of sociopathic personality disturbance (DSM-I, 1952). DSM I came about in response to a growing need by the American military for a dynamic diagnostic nomenclature of psychiatric disorders, and was based on the October 1943 War
Department Technical Bulletin 203 (Barton, 1987). Moreover, with the American embrace of psychoanalytic concepts (while psychoanalysis did not have much influence in Europe), a shift to a biopsychosocial nosology, rather than
Kraepelin's more biomedical model was necessary (Shorter, 1997; Stone, 1997).
As Neel Burton (2010) notes, it was nearly impossible for a non-psychoanalyst to become a professor of psychiatry or to chair a department of psychiatry from
1945-1955, so strong was the psychoanalytic influence.While Kraepelin's nosology is somewhat recognizable, DSM I deviates from his work, following
Adolf Meyer's29 concept of'reactions' (Barton, 1987; Stone, 1997).30
Adolf Meyer (1866-1950) was a Swiss psychiatrist who immigrated to the United States in 1892 where he went on to become one of the most influential psychiatrists in America. As Edward Shorter (1997, p. 101) writes: "Although Meyer never became an international figure (his brief vogue in Britain notwithstanding), he was the most prominent American psychiatrist before World War II, and his distinctive style did much to shape and misshape the evolution of American psychiatry in general." 30 There is no consensus in the literature. Some credit Meyer, some Kraepelin, as the precursor to the DSM 1 nosology. What is clear is that the DSM I uses a descriptive biological model to formulate its categories, suggesting that Kraepelin had some influence (although this could have been through his influence on Meyer's work, rather than a reflection of his own work's influence). DSM I also uses the term 'reactions' as a touchstone throughout, suggesting the strong influence of Meyer.
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At this time in psychiatry, patients were to be diagnosed with only the most severe disorder present. Sexual deviation was only to be diagnosed when there was no other more extensive syndrome present, such as obsessional or schizophrenic reactions (DSM-I, 1952). Types of pathologic behaviour that were to be noted in this category were "homosexuality, transvestism, pedophilia, fetishism and sexual sadism (including rape, sexual assault, mutilation)" (1952, p.
39). The inclusion of these behaviours mirrors the construction of categories established by Krafft-Ebing (1905) in his Textbook of Insanity as "Anomalies of the Sexual Instinct," although with significantly less detail than Krafft-Ebing included.
DSMII changed the requirement to only diagnose the most severe disorder, encouraging psychiatrists to diagnose multiple disorders when present, leading to a much expanded categorization of disorders (DSM-II, 1968).
Published in 1968, DSMII was expanded to more closely align with the
International Classification of Disease (ICD-8), the first time that psychiatry used the World Health Organization's nomenclature. This allowed the American diagnostic standards to be brought into line with the European standards under a common language. A cooperative study between researchers in the United States and England is credited with making this shift possible (Stone, 1997). This cooperation occurred to some degree because of the return of the biological model in the United States. This return to the biological model occurred earlier in
Europe, with the use of antipsychotic medications predating American usage by almost ten years (Stone, 1997).
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One reason for the delay in American embrasure of medication and the biological return was the predominance of psychoanalysis in the US.
Psychoanalysis never achieved the stronghold in Europe that it had in America, but with the move to medication its hold in America was broken. According to
Neel Burton (2010, p. 6) the psychoanalytic turn was brought to an end by
"neuroimaging techniques, genetic studies, and pharmacological breakthroughs such as the first antipsychotic chlorpromazine [...] and prompted a return to a more biological, so-called 'neo-Kraepelinian', model of mental disorder."
It is with this return to the European standard that Krafft-Ebing's work as the foundation of the psychiatric (mis)understanding of trans becomes more obvious. Under the category Personality Disorders and Other Non-Psychotic
Mental Disorders, within the subcategory of sexual deviations, DSM-II (1968) includes Homosexuality, Fetishism, Pedophilia, Transvestism, Exhibitionism,
Voyeurism, Sadism, Masochism, and Other sexual deviation as specific diagnoses. What was a single diagnosis in DSMI - "sexual deviation" - became in
1968 a major heading, under which appeared whole sets of new diagnoses that were designed to allow for greater specificity; a specificity that is much more closely aligned with Krafft-Ebing's (1905) Anomalies of the Sexual Instinct, which includes a very similar listing of deviations.
When DSM III (1980) was published the language used to diagnose this category of disorders changed again. Sexual Deviation as a heading was changed to Psychosexual Disorders. After much lobbying by gay rights activists following
114 The (Un) Usual Body the publication of DSM77(1968), homosexuality was removed,31 and gender identity disorder and transsexualism make their appearance (DSM-III, 1980).
While it is tempting to think that this demonstrates an end to the conflation of homosexuality and transsexuality in psychiatry, I argue that in fact what appears is a continuation of the continuum laid out by Krafft-Ebing that sees trans and homosexuality as degrees of the same condition. The conflation that began in
Imperial Germany between cross-gender embodiments and homosexuality is also evident in the categorizations and headings used: Psychosexual Disorders are divided into four groups: Gender Identity Disorders, Paraphilias, Psychosexual
Dysfunctions, and Other Psychosexual Disorders. Interestingly, this more specific and expanded understanding also more closely resembles the work of Krafft-
Ebing in Psychopathia Sexualis and Kraepelin's Kompendium. So, essentially, the change in language in DSM HI is an even closer alignment to the work generated in this area in Imperial Germany.
It is important to recognize that while some have used this initial inclusion of the term "transsexuality" as evidence that medical technologies of the mid twentieth century allowed for the creation of this embodiment (Hausman, 1995), the connections between Krafft-Ebing's terminology and the earlier versions of
DSM suggest otherwise. Moreover, attempts to change the sex of animals were being publicized by the 1910s, and from the 1930s American media broadcast stories on sex change (Meyerowitz, 2002), suggesting that the technology existed and was being used prior to the first edition of DSM even though the term
This occurred during meetings regarding DSM III, and is usually dated in 1973 (Stryker, 2008), although the publication date of 1980 is also used.
115 The (Un) Usual Body transsexual was not. The inclusion of transvestism, for example, further indicates that gender-crossing as pathology predates modern SRS in contemporary psychiatry. Moreover, initial attempts at surgical interventions related to SRS have been documented in the nineteenth century and earlier. Clearly, Ulrichs' discussion of'Urnings' and Krafft-Ebing's case studies of viraginity and androgyny offer obvious examples of trans embodiments that predate modern
SRS, suggesting that modern medical technology is not the definitive starting point of psychiatry's (mis)understanding of trans. As Prosser (1998, p. 142) points out "sex change is not the diagnostic indicator of the transsexual subject but its
'cure,' not its cause but its outcome." In this way technology appears, as
Meyerowitz (2002) argues, not to have driven the construction of the category transsexual; and neither does the category's appearance herald a new phenomenon.
This brings us to the current manual DSMIV, published in 2000, where the category Sexual and Gender Identity Disorders has replaced Psychosexual
Disorders. The subcategories have also changed, so that there are now Sexual
Dysfunctions, Paraphilias, Gender Identity Disorders, and Sexual Disorder Not
It is also important to note that the differentiation between transvestism, transsexuality, and other trans embodiments (as well as intersexuality) while recent, do not stem from the construction of new embodiments, but rather from the construction of more differentiated identities and the political aspirations of specific activist groups. 33 For example, a German sexology journal published the case of Herman Karl (born Sophia Hedwig) who had undergone a genital masculinization surgery in 1882 (Houstein, 1928-29; Bullough & Bullough, 1993; Prosser, 1998). There has been mention of some surgical interventions from Classical times as well, although this is not well researched or documented. For example, Ulrichs discusses a third century cross-gendered Emperor who requested that a vagina be surgically constructed for him so that he could be penetrated sexually. There is some work being done in the history of surgery at the University of Calgary that suggests that such plastic surgery was possible during Roman times; however none of it has yet been published (personal communication with Frank Stahnisch, Program Chair, History of Medicine, University of Calgary).
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Otherwise Specified. Yet these changes have little to do with how the disorders are diagnosed or treated. Moreover, the foundation and conflation that began in the nineteenth century in Germany is still clearly visible in this iteration. In DSM
IV (2000) the discussion of specifiers is particularly instructive in relation to the continued slippage between trans and homosexuality in psychiatry. By noting that
"virtually all" FTMs with GID will receive the specifier "Sexually Attracted to
Females" with only the exceptional case presenting who is "Sexually Attracted to
Males," the APA continues to strongly link homosexuality and trans embodiments in a similar manner as Krafft-Ebing's "'Urnings' and Homosexuals."
While surgical and hormonal treatments for transsexuality have changed dramatically over the course of the hundred and fifty years since Ulrichs first described the transsexual knowledge of'Urnings,' the clinical diagnosis and psychiatric understanding have actually changed little. The conflation of cross- gendered behavior with sexuality continues, as does the linking of this behavior with sexual perversion - an inherent and immutable moral degeneracy. The current draft of DSM Fdoes little to change this. Some of the wording has changed, but substantially, the diagnostic criteria remains as Krafft-Ebing and
Kraepelin formulated it in the nineteenth century.
In Krafft-Ebing and Kraepelin's time transsexed people were considered unbeatable by psychiatry. They were considered to have a mental illness, but the illness was not amenable to any available treatment.34 Today's understanding is actually quite similar. DSM III (1980, p. 262) suggested that GID in adults was
While Kraepelin found that some of cases were somewhat amenable to hypnosis, this was not the case with the more 'advanced' cases. Moreover, changes occurred only after a considerable amount of time, and were considered liable to relapse (Diefendorf, 1907).
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"chronic and unremitting" and that SRS, as a recent development had a long-term course that was unknown. DSM IV (2000) also posits GID in adulthood as having a chronic course. The acceptance by psychiatry of cross-hormone therapy and
SRS is due to an understanding of the disorder as not amenable to any psychological/psychiatric forms of treatment (including psychotropic drugs, hypnosis, psychotherapy, electroconvulsive therapy, and so on). Essentially then psychiatry 'passes off the 'incurable' transsexed person to the endocrinologist and plastic surgeon for treatment that eases symptoms but does not cure the patient.35
This psychiatric understanding of transsexuality as incurable is further evidenced in that the diagnosis of GID inheres in the transsexed body that has been medically reassigned. The disorder is understood to persist even though the medical transition functions to alleviate the diagnosable symptoms. The MTF who is comfortable as a woman no longer suffers from the distress required to diagnose her with GID, yet her diagnosis remains. This demonstrates further the
(mis)understanding of trans in that the privileging of the natal assignment - a privileging that is apparent in the categorization of non-symptomatic transsexed persons as disordered based on their previous diagnosis - functions to deny the mutability of sex. It also confers its authority on this stable binary conception of sex, in that it constructs psychiatry and the psychiatrist as being the only appropriate ones to speak the Truth of a transsexed person's sex, while at the
15 This is not to suggest that psychiatry is right or wrong in this perspective, but rather to point out that it is coded as a mental disorder but treated as a physical one (involving the physical body not the physical brain) - an oddity within both psychiatry and medicine more generally. 36 This is something that may be changed with the DSM-V, although as it is only in draft form at this time the final version may or may not include this change.
118 The (Un) Usual Body same time serving to discount the individual's knowledge of their own sex.
Because the sole point of agency of the transsexed person is tied to transition, the agency can only be seen as flawed within a cultural norm of the erasure of investment. By positioning transition as a failed agency, the transsexed person's truth is subordinated to the psychiatrist's diagnosis of disorder and the moral coding of madness. In addition, the (re)inscription of the natal sex assignment occurs within this regime of practices whereby the return of the natal assignment occurs within medical language regardless of the medical reassignment. Through this return the disavowal of mutability is positioned as scientifically true, while the transsexed person's knowledge is produced as false.
Historical conclusion
Clinical psychiatry as a burgeoning profession came of age amid the changes in law combined with the increased urbanization, industrialization, and medicalization of Imperial Germany. This resulted in dramatic shifts in the trajectory of clinical psychiatry at the time, but also in lasting changes to the way that psychiatry functions today. With the more recent swing back to a biological focus away from the psychoanalytic turn driving American psychiatry in the early and middle twentieth century, a return to the historical foundations of modern clinical psychiatry is evidenced.
Taken this way, 1869 can be seen as an historical turning point; a point at which the conflation of homosexuality with gender non-conformity becomes entrenched within the scientific language of the day; a language that continues to
119 The (Un) Usual Body demonstrate its ability to produce knowledge and to discount other knowledges about sex. Moreover, the disavowal of the mutability of the body, the very foundation of transphobia, is supported through this conflation. As Jay Prosser
(1998, p. 138) argues: "Through sexual inversion sexologists sought to describe not homosexuality but a broad transgendered condition of which same-sex desire was but one symptom, and not vice versa." The conflation of one with the other, allows the erasure of the mutability of the body, while at the same time presenting the 'magical' belief required to support the disavowal.
In the present, returning to the Zizek (2000) quote at the start of the phase, we can see this historical conflation "as the outcome ... of the crushed potentials for the future that were contained in the past". The historical (mis)understanding of trans appears to have foreclosed the possibility of resolving this deadlock differently. With the move to modern psychiatry brought about through the change from rural asylum based psychiatry to the university based polyclinics, the entrenchment of sexual science within psychiatry as perversion appears fixed. The scientization of psychiatry further functions to position psychiatry as the only legitimate authority to produce knowledge about the sex of a transsexed body. As
Stryker (2008, p. 36) notes: "Medical practitioners and institutions have the social power to determine what is considered sick or healthy, normal or pathological, sane or insane". The knowledge produced through psychiatry disavows the mutability of sex through a discounting of the transsexed body's knowledge, by the moral coding of perversion, and through the (re)inscription of the natal
120 The (Un) Usual Body assignment as primary. How then are we to proceed in a way that will allow us to resolve this deadlock differently?
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Phase 3: Law and Immutability
The victims of repression, oppression, discrimination, deportations, evictions and denials of compensation and welfare are all around us. This is so despite the fact there are many statutes, and even some judicial pronouncements, which purport to afford protections against attacks on the poor, the old, the injured, the unemployed, women, immigrants, native peoples and other politically weak and economically deprived segments of the population. [...] There is an inclination to believe that problems arise because either the law does not provide a protection it could afford, or because courts and administrative agencies interpret, apply and administer existing protective legal schemes wrongly and meanly. (Glasbeek, 1989, pp. 387-388)
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Chapter 4: Trans Jurisprudence
In this phase I explore legal histories, arguments, and decisions of what
Andrew Sharpe (2002) has termed transgender jurisprudence. Understanding the relevant case histories of legal issues surrounding trans is important in order to understand the legal situation today; a situation that is woven in with the medical
situation to an alarming degree. Because the transsexed body is so heavily medicalized within psychiatry, this history is important in order to inflect trans history with its larger social context. Attempting to divorce the transsexed body from discussions of madness and mental illness sets the body outside of an important social context; a context that directly impacts many people's everyday lives and activities. Moreover, it is important to remember that the medicalization of sex does not merely extend to trans bodies, but that all bodies are sexed through this medicalization; therefore it is not merely the sex of trans bodies that are fixed within law but the sex of all bodies. One effect of the trans body in law is, therefore, to interrupt the seemingly coherent and natural hierarchy of the binary conception of sex.
The 'modern episteme' as characterized by Foucault is marked by the development of the disciplinary society (Smart, 1990). This development is often understood as a transformation from sovereignty to governmentality; however the relationship of law to this transformation is rather complicated (Dean, 1999;
Foucault, 1995; Smart, 1990). As feminist legal scholar Carol Smart (1990) argues law is not challenged by the emergent 'psy' professions that develop out of
123 The (Un) Usual Body this shift, rather law extends its legitimacy by incorporating these discourses into its area of influence.
So we can see a form of cooperation rather than conflict and a process by which law extends its influence into more and more 'personal' or 'private' areas of life. In this respect law is most definitely exercising a mode of disciplinary regulation. With each of these moves law incorporated the terms of the discourses of the human sciences and, I would argue, extended its exercise of power to include the new technologies identified by Foucault. Hence law retains its 'old' power, namely the ability to extend rights, whilst exercising new contrivances of power in the form of surveillance and modes of discipline." (Smart, Feminism and the Power of Law, 1990, p. 17)
What this means in relation to this project is that the transsexed body's relationship to law comes about through its relationship both to law and to medicine/ psychiatry. The professionalization of forensic psychiatry discussed in the previous Phase serves as an obvious example of this incorporation and extension of law's influence into socio-hygienic prophylaxis and the protection of the larger society from bodies deemed dangerous in ways that are not necessarily criminal.
The collusion of medicine and law functions to fix gender/sex in a manner that also serves to legitimate this fixing (Smart, 1990). Denying this relationship functions simply to legitimate the other's authority. In this way, the nontrans body's sex, while fixed by law as well, operates as Calder's mobile, as the naturalized stable body that makes plainly visible the stabile's unnatural unstable sex that must - through law and medicine/psychiatry - be once and for all fixed.
Moreover, law's remedy, as Smart (1990, pp. 103-104) argues: "is a 'remedy'
124 The (Un) Usual Body which avoids addressing fundamental inequalities ... The legal 'remedy' individualizes these social issues - giving the individual the impression that law can be used to resolve his, or less frequently her, personal problem." When law has come to be thought of as a private solution to social problems, important questions need to be asked. How do trans calls to law or legal strategy work on behalf of trans identified people? What strategies have been used, and what expectations are realistic?
Towards a Specifically Trans Strategy
One of the most contentious and confounding issues in transsexed activism is the medicalisation and subsequent pathologization of being transsexed.
Because psychiatric diagnoses are steeped in stigma (Alexander & Selesnick,
1966), there is a desire by some activists to remove this stigma by removing trans's relationship to psychiatry. Moreover, the conflation of trans embodiments with sexual perversion, as discussed in Phase 2, leads many to believe that its removal will enable a severing of that link as well. It is this kind of position that leads to attempts to remove Gender Identity Disorder (GID) from the DSM; a situation that has increased with the current discussions concerning DSM V. This is especially true of those activists that do not identify as transsexed but as some
37 This has been somewhat heightened due to the May 2008 naming of the working group members revising the sexual-GID section of DSM V. In particular, the chair of the working group, Kenneth J. Zucker, and another of the members, Ray Blanchard, are well-known to Canadian transsexed people as entirely unfriendly to the community; it is commonly held by activists that these two, both from the notorious Clarke Institute in Toronto (now renamed as CAMH - Centre for Addiction and Mental Health), have caused significant pain and suffering to trans people in Canada through denial of transition, and forced reparative therapy.
125 The (Un) Usual Body other form of trans; particularly those people who do not wish or require any medical intervention. Yet, those who do not seek medical intervention have no specific trans-driven need to encounter the psychiatric system. This is an often elided yet significant difference between transsexed and other trans embodiments.
This is also an example of one of the ways in which trans activism has followed gay and lesbian activism. Activism that centres on identity and equality tends to fall into this pattern of following another group's strategy. This is a situation that I term a big brother/ little brother scenario. Those groups who have come before - the big brothers - have blazed a path toward what currently more marginalized groups - the little brothers - see as equality protection. The relationship of one group to the other is affirmed in many instances, not merely by age - as in the big brother came to ask for protection before the little brother, but also in what some see as similarities between the siblings - a parental lineage if you will. In the case of trans communities, the long-standing construction of a lesbian, gay, bisexual, trans community (LGBT), or a queer community, or simply the inclusion of trans under the sexual minorities umbrella, also helps to equate trans issues with lesbian and gay issues, but in a big brother/ little brother construction.
What this construction does, this big brother/ little brother scenario, is to plot out not only a course of action, but the course of action. The little brother is then expected to follow in the footsteps of the big brother, and to need the big brother's assistance in order to ensure that the steps are appropriately followed.
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Any deviations from this course are seen as either childish mistakes or a slap in the face to the big brother.
One example of this occurs in the report Finding Our Place: Transgender
Law Reform Project when barbara findlay, a self-identified lesbian, non-trans lawyer who has worked with trans clients, argues that disability is an inappropriate and problematic (although seductive) ground for trans identified people to seek protection under because it "forces transgendered people to accept a self-definition as disabled either mentally or physically in order to make a claim that they deserve to have human rights" (findlay, Laframboise, Brady, Burnham,
& Skolney-Elverson, 1996, p. 26). This position clearly uses "disabled" in a derogatory manner that implies a privileging of some normative body that is
"abled;" a position that clearly refuses any other understandings of the term, and that maintains the hierarchy of abled over disabled. Moreover, findlay (1996) positions this argument as being inconsistent with a political strategy that demands that trans identified people be treated and understood as normal and healthy rather than aberrant. This positions her argument more explicitly as associating disability with aberrance; an argument that serves to further the stigma faced by those with disabilities.
Findlay further supports her position by stating: "The gay, lesbian and bisexual communities have instead consistently demanded to be accepted as normal, medically and legally, and not ill or disabled" (findlay, Laframboise,
Brady, Burnham, & Skolney-Elverson, 1996, p. 27). In this sense she is clearly arguing that because this position has been adopted by the gay and lesbian
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TO communities, it ought to be adopted by trans communities. The less explicit undertone of the argument though, is that the big brother knows better than the little brother what the best course of action is. Yes, the gay lobby could have argued disability, but they chose not to, and following this reasoning, trans communities would be wise to choose not to as well. The equation of the desires, motivations, and strategies of gay and lesbian communities as being not only appropriate for trans communities, but better than the strategy that transsexed claimants have adopted, can only occur within a hierarchical fraternal relationship.
I term this a hierarchical fraternal relationship because gay and lesbian communities cannot be seen to be acting in a strictly paternal sense in relation to trans communities. Neither should trans communities be seen as stemming from or coming out of gay and lesbian communities; an understanding that appears to be implied within a paternal frame, and that encourages the ongoing and historic conflation of these communities.39 The relationship between the communities is significantly more complicated and nuanced. While gay and lesbian communities may feel that they know what is best for trans communities, this knowing stems from the experience of a sibling; experience that demonstrates some understanding of the environment in which the other sibling has lived, but an
j81 have deliberately left the bisexual community out of my discussion of findlay's argument because it is not clear that the bisexual community was in fact involved in either the gay and lesbian communities' political actions, or their strategic choices. The bisexual community is often included in name only within these contexts, in much the same problematic way that trans inclusion occurs, and I do not wish to be complicit in this erasure of bisexuality. j9 For a larger discussion of the historic conflation see Chapters 2 and 3.
128 The (Un) Usual Body understanding that is tempered by the perspective of a sibling who is also still negotiating his own place in an adult world.
My construction of this scenario as gendered is deliberate. Within Western history, men have been seen as part of the public sphere, while women have most often been relegated to the private sphere. While I am sympathetic to the feminist position of using the feminine gender as the universal in order to disrupt this historical relegation, I feel it is necessary to point to the gendered understandings of the communities being discussed, and the political underpinnings they reveal.
This is also a political position, in that making the gendering explicit has, potentially, a more disruptive result than using a universal signifier (whether that universal be the dominant masculine one or the feminist disruptive one).
Demonstrating the implicit gendering offers the potential to rework that gendering in a way that using a feminine pronoun to refer to a group (or individual) that is already seen and coded as masculine does not.
The majority of the legal, large-scale activism in gay and lesbian communities has been driven by gay men, and the political strategies are obviously reflective of a white, professional, male bias.40 Which is not to say that lesbians have not been politically active, but merely to reflect that advances for
'homosexuals' often more appropriately mean advances for gay men, which may or may not benefit lesbians. Similarly, trans communities are understood through the lens of masculinity much more often than through the lens of femininity. The ubiquitous construction of the trans body as always already a man-in-a-dress is
40 Evidence of this kind of erasure of lesbians from constructions of a homosexual or queer community has been critiqued by feminist scholars (Goldman, 1996). This political strategy has also been critiqued by other members of the queer community, for example Dean Spade (2006).
129 The (Un) Usual Body only one instance of this. The constructions of transwomen as failures of appropriate femininity (whether due to an excessive performance of femininity or an inability to 'pass' because of what is seen as residual masculinity), combined with the erasure of transmen, also lend themselves to an understanding of trans communities as essentially masculine, albeit a failed masculinity.
This masculinity is failed in part because the privilege of masculinity is not monolithic, but rather hierarchical. Dominant forms of hegemonic masculinity are offered significantly more privilege than less acceptable forms of masculinity.
Less acceptable forms of masculinity include any masculinity performed by a stabile body (a body seen as having some form of arrested or potential movement in relation to its sex/gender), therefore including effeminate men, masculine women, and more acceptably masculine transmen who are known, or are outed as trans. My construction of these communities (homosexual and trans communities) as fraternal siblings (as opposed to sisters or a gender neutral term) is an attempt to capture the nuances of these constructions of masculinity in trans subjects and homosexual subjects, as evidenced by the privileging of men over lesbians in the term homosexuality.
This big brother/ little brother scenario is demonstrated in the advocacy of groups like EGALE (Equality for Gays and Lesbians Everywhere) that express concern about trans issues only insofar as they are expressed with the rubric of homosexual issues. For example, in the booklet Trans Travel Tips for Flying, there is a discussion of the implementation of full body scanners in airports as posing privacy and discrimination problems. The pamphlet states:
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Scan results are only supposed to be viewed by same- gender personnel, but this can be impractical, for example, when the gender marker on one's ID does not match that person's gender expression or when transitioning surgery has not been completed. Various prosthetic body parts may also cause concern for airport personnel who have not yet been trained in LGBTQ matters. (EGALE Canada, 2010, p. 2)
Training airport personnel in LGB matters will not benefit trans flyers in regard to the use of prosthetic body parts or the determination of same-gender security personnel. LGB identified people who fulfill an acceptable mobile sex/gender embodiment (meaning that they are understood as belonging specifically and naturally to one (and only one) of the discrete categories of male or female since birth) pose no problem in the identification of same-gender security personnel.
LGB identified people might use prosthetic body parts; however, they are unlikely to do so specifically due to their identification as L, G or B. Trans flyers using prosthetic body parts could, therefore, be seen as having much more in common with some of the disability community or cancer survivors, as they may also have difficultly flying with their prosthetics. The use of LGBTQ in this sense then is not to point to a commonality between the differing communities and their needs, such that these differing needs can be met by a single intervention. The use is a rhetorical strategy designed to construct the singular community that it names -
LGBTQ. However, the specificity of the concerns of trans identified people in
41 While some butch lesbians who do not identify as trans do occasionally 'pack' (they wear a prosthetic in their pants to simulate the appearance of male genitals) and/or 'bind' (they use something to tie their breasts down to their chest in order to simulate a male chest), they are unlikely to do so when flying. Those that are inclined to present as male or as having a male body in situations such as airport security are also more likely to identify as trans, making their use of prosthetic devices a trans issue, not a lesbian issue. Moreover, the issue is with gender-crossing, not sexuality, thus, regardless of the individual's identification, it is transphobia, not homophobia that is occurring when problems such as these arise.
131 The (Un) Usual Body relation to flying is co-opted by the discussion of the need for training in LGBTQ matters. Trans issues in this sense are understood as essentially homosexual issues. Politically, then, it is merely a case of doing for the trans community what the homosexual lobby did a few decades ago.
There are at least three very important problems with this big brother/ little brother scenario. First, it does not take into account the way that human rights mechanisms, and in particular antidiscrimination protections work. As legal scholar Harry Glasbeek (1989) articulates in the quote beginning the Phase, there is a significant misunderstanding of how these mechanisms work and what these mechanisms do. A second problem with this fraternal scenario is that it does not take into account the differences between the sibling communities and the inequalities that they face. A third significant problem, which is to some degree a natural extension of the first is that this scenario seems to dismiss the fact that while the big brother communities have achieved symbolic protection within law
(formal equality), they have not actually achieved true or substantive equality through this strategy. These three problems are discussed both in this chapter and in Chapter 5 in slightly nuanced ways.
Human Rights Mechanisms
Notions of equality, and the laws that we expect to protect us from inequalities are largely misunderstood by the many minority groups that make repeated calls for their explicit inclusion in law. There appears to be a fervent
132 The (Un) Usual Body belief within activist communities that the inclusion of specific protection in anti discrimination legislation produces equality; that the discrimination faced by members of the trans community, for example, will drop away if the Charter of
Rights and Freedoms and federal and provincial human rights codes contain enumerated grounds of protection. Yet, the gap between formal and substantive equality makes anti-discrimination protections insufficient to produce these changes.
The position of trans communities within anti-discrimination legislation in
Canada is complicated and contentious, leading to a lack of clarity around the most appropriate legal course or strategy. I use the term anti-discrimination legislation following Nitya Iyer's discussion of it as a comprehensive term that incorporates both the section 15 Equality Rights of the Charter (usually called
"equality rights") and the rights in provincial, territorial, and federal human rights legislation (usually called "human rights"). According to Iyer (1993-1994, p. 182) the term anti-discrimination legislation "emphasizes the structural similarity between equality rights and human rights, and underscores my contention that the egalitarian liberal conception of equality in such legislation defines equality as neither more nor less than anti-discrimination."
Policy changes that remove barriers to government issued identity documents (ID) would, perhaps, have the largest impact on trans experiences of discrimination; yet activists continue to pursue rights-based legal strategies often at the expense of pursuing other avenues. One explanation for this strategic choice
" The Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being schedule B of the Canada Act 1982 (U.K.), 1982, c.ll [Charter]
133 The (Un) Usual Body is because, as Duncan Kennedy (2002, p. 188) writes: "The appeal to a rule cast in the form of a right may produce the experience of closure: given this legalized right, you can't think of a good reason why the plaintiff shouldn't lose the case."
Yet, one significant problem with rights-based claims is the gap between formal and substantive equality. As legal scholars have argued for years, the gap between formal and substantive equality makes anti-discrimination protections insufficient to produce changes that would deal with the discrimination faced daily by many disadvantaged groups including members of Canadian trans communities (See generally: (Fudge, 1990; Glasbeek, 1989; Lugtig & Parkes,
2002; Iyer, 1993-1994; Rogers, 1986; MacKay, 1986)).
One of the main tenets of trans activism in Canada and many other countries around the world has been to demand protection in human rights legislation. Because this protection is often seen as only being offered when gender identity or gender expression have been specifically named in legislation, trans communities represent themselves as not protected within legislation. This claim is backed up by reference to the substantive inequalities faced by trans identified people on an everyday basis, inequalities such as access to documentation, healthcare, the right to move freely within the country and across borders, the right to vote in elections, access to legal gainful employment, and the right to security of the person.44 Activists would, however, do well to heed the
4j This is a point at which the first and third problems slide into each other. The gap demonstrates a misunderstanding on the part of activists regarding how anti-discrimination mechanisms function, but it also produces the inequality of outcome characterized by ongoing discrimination in spite of formal protection. 44 This list is merely reflective of a number of issues faced by trans-identified individuals is not meant to be exhaustive or to speak to the issues faced by any specific individual.
134 The (Un) Usual Body warnings of legal scholars Allan Hutchinson (Hutchinson, 1984, p. 285): "Legal change does not amount to social change", and Harry Glasbeek (1989, p. 393): "It is not easy to predict whether an attempt at legislative or judicial reform will yield the benefit sought."
While many theorists have argued that inclusion in anti-discrimination legislation is an insufficient but necessary step to substantive equality, it is my position that the pursuit of rights through anti-discrimination law functions as a distraction from other avenues that might offer a better step towards substantive equality for trans communities. Moreover, I argue that the legal strategy of having gender identity or gender expression included in anti-discrimination legislation is not only insufficient to afford protection, it may in fact do more harm than good.
The ultimate purpose of law is after all, as Glasbeek (1989) cautions us, to maintain the status quo and prevent radical change. An understanding of anti discrimination mechanisms and the willingness or reluctance of jurists to find and remedy discrimination should, therefore, be considered prior to determining the most strategic course of action; and it is this understanding that appears to be missing from much of the well-meaning, yet misguided, trans activism. Human
Rights Tribunals in Canada have already found trans identified people to be protected under the grounds of disability and sex, as I discuss at length in the next chapter, yet activists continue to push for specific inclusion of gender identity and/or gender expression in law, with the majority of efforts and resources being directed towards this pursuit.
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There is a seductiveness to law. The pervasive commonsense approach to
law is that it has the power to right wrongs, that it has the power to give or
withhold rights (Smart, 1990). Law's "ability to impose its definition of events on
everyday life" is a function of both the ubiquity of this commonsense approach to
law and the seductiveness of this understanding of law (Smart, 1990, p. 4). This
imposition of law into everyday life assists in imbuing law with this seductive
quality. When the law speaks on an issue, its knowledge disqualifies other forms
of knowledge (Smart, 1990). When law is silent on an issue it appears as if there
is no wrong, making law's silence tantamount to law's approval. This translates,
commonsensically, into law's authority to grant or withhold rights. It also
constructs law as monolithic. Law is not a singularity; yet as Carol Smart (1990, p. 4) explains:
Notwithstanding this, the collectivity to which the label law is applied presents us with the appearance of unity and singularity. Hence law constitutes a plurality of principles, knowledges, and events, yet it claims a unity through common usage of the term 'law'. I shall argue that it is in fact empowered by its 'singular' image. It is important to acknowledge that the usage of the term 'law' operates as a claim to power in that it embodies a claim to a superior and unified field of knowledge which concedes little to other competing discourses which by comparison fail to promote such a unified appearance.
The seductiveness of this claim to power by a superior and unified field of knowledge also operates in relation to trans activism to legitimate the power of
law to produce the truth about sex, as well as the truth about right and wrong. The
appeal to law reinforces law's claim to power, which in turn increases the
seductiveness of law as the ultimate protector of the weak, leading to requests for
136 The (Un) Usual Body formal inclusion, thereby further legitimizing law's authority. The authority of law and the seductiveness of law function as a tautology, with one reinforcing the other, while at the same time effectively precluding any other strategy or claim to knowledge or power.
Canadian Context
Canadian anti-discrimination law is grounded in both liberal and post- liberal conceptions. The liberal basis privileges the individual and liberty
(MacKay, 1986; Gotell, 2002), while the post-liberal interpretation allows for some understanding of collective rights and the need for some government intervention in, and regulation of, the market, thus leading to socio-economic benefits programs (Sheppard, 1986). While activists have a specific concept of equality in mind when they lobby for it, they might do well to heed the warning:
"beware, lest the game you name become the game you are compelled to play"
(McBride, 1986, p. 10).
Equality means radically different things depending upon the perspective through which it is interpreted. Activists are likely using it in a way that compares social, political, and economic conditions of different members of society, therefore thinking of it in terms of distributive justice (Rogers, 1986). This is a post-liberal perspective in which equality rights are understood as meaning substantive equality or equality of condition; yet "[b]oth the concepts of equality and judging are grounded in the ideology of the liberal state" (MacKay, 1986, p.
37). What this means is that courts are much more likely to offer formal equality
137 The (Un) Usual Body or equality of opportunity, based on facially-neutral laws, rather than the substantive equality the activists are seeking. As Peter Rogers (1986, p. 149) notes: "The liberal equality of right is a right to determine one's own condition through the exercise of free will; it is not a right to an equal condition. Hence, we have the phrase "equality of opportunity"." What is missing from this liberal perspective is that the exercise of free will cannot be equal when the social, political, and economic conditions in which those 'choices' are made are not equal; thus formal equality - where equal treatment means simply the same treatment - is consistent with the neoliberal "recommitment to possessive individualism, valorization of the free market, and an emphasis on the local and the individual" (Young, 2007, p. 320).
One example of this is the letter asking for support for Private Member's
Bill C-389 in parliament. The letter states:
Transsexual and transgender people are often victims of discrimination, harassment, and violence because of their gender identity and gender expression. They often experience injustices such as denial of employment, housing, access to trans-sensitive health care, and face difficulties obtaining identification documents. Because there are so many barriers for transsexual and transgender Canadians, explicit rights and protections must be added to the CHRA and the Criminal Code.
Adding this explicit protection will not undo the historical (and current) inequalities that lead to most of this discrimination. Within a neoliberal climate of
"responsibilization," same treatment is more likely to result in discrimination and inequality than it is to provide a remedy for it. Responsibilization, as I have argued elsewhere:
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...functions in a 'broader field of rationalities and technologies for the conduct of conduct' (Rose, 2000, p. 324). As a key concept in Rose's work, 'responsibilization' speaks to the process whereby the imperative to improve oneself combines with the blaming of the person seen not to have appropriately fulfilled this ethical obligation. This process then leads to both the construction of this lack of responsibility as a 'choice,' and the justification for excluding that person from the political sphere. (Mandlis, 2011, p. 220)
Unfortunately, the request in the letter also relies upon a logical fallacy of non sequitur. The issues that are mentioned do occur quite regularly for many trans identified people; however the laws that the Bill is attempting to change will not actually prevent any of these forms of transphobic discrimination from occurring.
Yet the appeal to formal equality is seductive, and appears to offer relief from discrimination.
It is also important to contextualize human rights in relation to cycles of violence and liberation, following the work of queer legal scholar Kathleen
Lahey. Notions of freedom and equality for marginalized groups seem to incite those motivated by hatred to re-establish old hierarchies through a return to state- tolerated or official state violence (Lahey, 1999). What this means is that
'freedom' of an oppressed group is often seen to come at the expense of a privileged group, and this 'freedom' is then met with a backlash. This allows both the larger social body and the courts to maintain the hierarchy that existed prior to this 'freedom' through recourse to cosmetically-neutral liberally grounded laws.
Because the "rule of law" is cosmetically neutral and applies equally to all, its application "avoids considerations of systemic inequalities and historical deprivations by focusing on the discrete transaction. Widespread discrimination
139 The (Un) Usual Body becomes a nonjusticiable matter of isolated, private, bargained for and 'consented to' choices" (Lessard, 1986, p. 114). In this way, as Colleen Sheppard (1986, pp.
197-198) argues:
Equality, according to the "rule of law" requires facially- neutral treatment; everyone is to be treated the same. Yet, treating those who are unequal in terms of their access to power and resources as though they are the same allows economic and social disparities to persist, while an illusion of fairness is created. This formalistic conception of equality, in fact, contributes to substantive inequality... .
Moreover, Fudge (1990) points out the ironic counterpoint of civil rights litigation strategy is that the mobilization of state power to gain formal equality allows the legal system to create this illusion of neutrality.
In Canada, politicians have responded to international rejection of state- supported violence by repeatedly enacting legislation allegedly designed to protect marginalized groups from future upsurges of hatred. This legislation began with the Racial Discrimination Act, in 1944, and includes the Canadian
Bill of Rights in 1960. However, the government and courts have themselves participated in these cycles of liberation and reaction, resulting in statutes being read narrowly, read down, or not read at all (Fudge, 1990; Lahey, 1999; Iyer,
1993-1994).
Because formalism is an underlying idea within the Canadian legal system, judges look to legislation and logic, rather than looking at the larger social and political structure (MacKay, 1986). Within formalism, judges are assumed to be able to determine the "truth" of a matter; but as feminist legal scholar Lise Gotell (2002, p. 258) writes: "This 'truth' is empowered by the
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manner in which law is viewed as akin to Western science, capable of revealing
reality through disciplined, 'objective,' and 'impartial' consideration of legally
relevant facts." This inevitably leads to a narrow interpretation of all legislation,
but particularly anti-discrimination law, as the privileging of liberty in a liberal
system requires just such a narrow reading of equality. Moreover, as McBride
(1986, p. 19) points out:
judges are inapt agents of distributive justice. Courts are ill-suited to apportion social benefits or to levy social burdens. They manifestly lack the legendary legislative capacities for the raising of revenue, the marshalling of resources, the gathering of information (not to mention logrolling, horse-trading, and pork-barreling).
Systemically, Canadian legislation has functioned to maintain hierarchical
orders that lead to the premature death of many disadvantaged groups, such as
Aboriginal peoples, people living in poverty, and other marginalised groups. This
occurs both through an understanding of what differences ought to be protected,
as well as the allowance of material conditions of difference. Recognizing that the
choices of what, and by extension who, should be covered within anti
discrimination legislation are a product of the dominant perspective being seen as
'common sense,' even members of marginalized groups, through socialization
within the dominant ideology, are led to accept that only certain characteristics
deserve protection under law (Iyer, 1993-1994). The neutrality and permanence of the list of characteristics is reinforced when the lists in various anti-discrimination
laws are similar. As Nitya Iyer (1993-1994, pp. 187-188) writes: "It becomes part
of the way things are; it appears as though everyone would agree with this list,
141 The (Un) Usual Body and no other for all time." In this way, anti-discrimination law functions largely to maintain the status quo, and to reinforce the hierarchical differences that it enumerates. Furthermore, the list presupposes the value of the court as a protector of rights (MacKay, 1986); yet with judges coming from an essentially elitist context, courts are unlikely to depart very significantly from socially accepted norms (McBride, 1986). This makes it pointless to ask what it is logically possible for a court to rule; instead we need to ask what, given the balance of power and the historical record, the court is likely to do (Fudge, 1987).
The categorical listing of grounds within anti-discrimination legislation functions both to obscure the complexity of social identities and the barriers these may produce, as well as to conflate assignments of difference as distinction and difference as hierarchy and entrench that conflation within legislation (Iyer, 1993-
1994). Difference as distinction involves a comparison, whereas difference as hierarchy is an assertion of power. However, because the listing of protected differences occurs against an unacknowledged background norm, the comparison and the hierarchy are implicitly contained, thus erasing the normative position.
This erasure then functions to produce the non-dominant expression of the characteristic as inherent in the other. The relational aspect of the difference disappears, such that the norm is not seen as having this characteristic, thus leading to the appearance of neutrality.
In order to access legal remedy through litigation a person must have both the financial and cultural capital to pursue the case. The most marginalized members of society (along with the majority of average citizens) do not have the
142 The (Un) Usual Body capital to litigate discriminations, and are therefore not well served by anti discrimination law (MacKay, 1986). In addition, the epistemological gaze of anti discrimination law functions to reify the dominant perspective, therefore offering justification for such inequitable treatment of those considered to be so different as to be strangers to the law (Iyer, 1993-1994; Lloyd, 2005). Because access to legal redress is unequal, legislation cannot produce equality. Moreover, when the perpetration of actions that lead to the premature death of a group of people, such as transsexed people, is accepted, and even mandated within law, turning to legislation as a means of protection is both insufficient and ironic. This insufficiency and irony is overshadowed, however, by the more insidious danger of formal equality: that formal equality is not merely a barrier to substantive equality, but is in fact a condition of possibility of that inequality.
As Mitchell Dean (1999, p. 15) writes: "[ljiberal ways of governing thus often conceive the freedom of the governed as a technical means of securing the ends of government." By directly stating the boundaries of freedom that are guaranteed, antidiscrimination legislation establishes a mentality of the government in relation to the freedoms that are allowed. By invoking the limitation of that freedom, the folding back of the ends of government upon its instruments is evident, and thus the governmentahzation of the government can be witnessed (Dean, 1999). The mentality of government as the "conduct of conduct" (Dean, 1999; Gordon, 1991; Foucault, 1983, pp. 220-221) becomes apparent in the statement of the limitation of freedoms guaranteed. The acceptable freedoms guaranteed are not limitless, yet the stated limitation references an
143 The (Un) Usual Body unstated norm while simultaneously producing Canada as a free and democratic state. The inclusion of "reasonable limits" in court rulings as well as legislation further demonstrates this commitment to a neoliberal mentality. What constitutes reasonable is a moral judgement. Thus, in referencing the reasonable-ness of this limitation on rights, the courts and legislation imply a linking of government with moral questions. If, as Dean (1999) argues, morality means to accept responsibility for one's actions by being accountable for them, then the linking of morality with government demonstrates that "ethopolitics" functions alongside responsibilization as a further means of governing the conduct of conduct (Rose
N. , 2000, p. 324).
Ethopolitics, according to Rose (2007) refers to "attempts to shape the conduct of human beings by acting upon their sentiments, beliefs, and values ... "ethopolitics" concerns itself with the self-techniques by which human beings should judge and act upon themselves to make themselves better than they are" (p. 27). Those who do not make appropriate choices, those who do not act upon themselves to make themselves better than they are, must be removed from the political sphere. (Mandlis, 2011, p. 221)
Hthopolitics, in this formulation, can be seen to function as a technique of government in which the imperative to exceed one's potential, and the responsibilization for any perceived consequences of a failure to do so, are important techniques of self-government. These techniques of self-government perform important functions in state government through the disciplining of docile bodies (Foucault, 1995; Foucault, 1990), the shaping of those governed through the moral impetus, and through the production of specific forms of freedom that citizens are urged to exercise (Dean, 1999). Neoliberal modes of
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government (broadly defined) can be distinguished through their attempt to define
the freedom or capacities of the governed, thus leading to liberal mentalities of rule that "attempt to define the nature, source, effects and possible utility of these
capacities of acting and thinking" (Dean, 1999, p. 15).
Some scholars, such as Hester Lessard (1986), have argued that the
inclusion of section 15 in the Charter, with its guarantee of "equal benefit of the
law" suggests a shift away from the liberal notion of formal equality towards the
substantive impact of laws that appear to be formally neutral; yet court rulings have shown that this is not the case. Protection and benefit of the law operate within the confines of the discourse of law in such a manner that the
systematically marginalized remain outside of such constructions of equality; an exclusion that is both a result of neoliberal governmentahty and its valorization of choice, and a reinforcement of responsibilization and ethopolitics as foundational to that govenrmentality. For example, a homeless person would probably be willing to forgo the 'protection' of property rights if it meant that they would not be charged with trespassing for sleeping on someone else's or public property, but the state enforcement of property and contract rights within law makes this an
untenable position for the court (Rogers, 1986). Protection and benefit extend equally within the function of law only insofar as the enormous inequalities of those rights are erased. In this way the rights that are protected under antidiscrimination law can be seen to function as advanced liberal practices of governance. Practices of governance that fall under the term 'advanced liberal' allow for the incorporation of a broader nexus of rationalities and strategies that
145 The (Un) Usual Body characterize contemporary liberal democracies; these may include multiple rationalities of government, such as neo-liberal, neo-conservative, populist, communitarian, and even anti-government reaction (Dean, 1999).
As Mitchell Dean (1999, pp. 164-165) explains:
A useful way of thinking about liberalism as a regime of government, however, is to consider the multiple ways it works through and attempts to construct a world of autonomous individuals, of'free subjects'. ... This is a subject whose freedom is a condition of subjection. The exercise of authority presupposes the existence of a free subject of need, desire, rights, interests and choice. However, its subjection is also a condition of freedom: in order to act freely, the subject must first be shaped, guided and moulded into one capable of responsibly exercising that freedom through systems of domination.
The protections offered by antidiscrimination legislation can be seen to function in just such a manner. They set the standard by which the protection of liberty can be measured, while at the same time producing that which is outside of a reasonable protection of liberty. The courts have enforced this boundary through the tendency to privilege a negative rights perspective (Young, 2007). With judges concerned about the impact of subjecting governments to the economic consequences of positive obligations, important Supreme Court of Canada decisions such as NAPE, Gosselin, Irwin Toy, and Eldridge, demonstrate a
45 Newfoundland (Treasury Board) v. Newfoundland and Labrador Association of Public and Private Employees (NAPE) [2004] 3 S.C.R. 381. In this case the Supreme Court of Canada found that the province could renege on its commitment to gender equality - through the implementation of equitable wages for gendered employment, essentially increasing the pay to women - due to financial hardship. Gosselin v. Quebec (Attorney General), [2002] 4 SCR 429. Here the Supreme Court of Canada ruled that differential social welfare payments based on age and adherence to specific conditions were not an infringement on the rights of a welfare recipient. Irwin Toy Ltd. v. Quebec (Attorney General) [1989] 1 SCR 927. In this case the Supreme Court of Canada found that the proper allocation of acutely limited resources requires the government to make difficult decisions regarding the balancing of competing interests, and how that balance is
146 The (Un) Usual Body strong reluctance to judicially mandated spending. In this way, the Court's interpretation of rights is "reminiscent of a more traditional notion of liberal rights
- that rights function as bulwarks against state action rather than as positive guarantees of an activist redistributive government" (Young, 2007, p. 325).
Omissions and Inclusions
Another important limitation to anti-discrimination legislation as a protector of rights and guarantor of equality can be found in what has been omitted from it. While there are many particular guarantees of equality, there is no economic guarantee. This functions not only to increase the gap between formal and substantive equality, it makes access to the highest levels of antidiscrimination - those contained in the Charter - inaccessible for the majority of Canadians. Without the funding necessary to pursue a Charter challenge, there is no real access to Charter protections (MacKay, 1986).
The choice of rights for inclusion (such as age, sex, physical and mental disability) also, by inference, excludes others (Iyer, 1993-1994; MacKay, 1986).
This is perhaps most evident in the years of the debates over the inclusion of sexual orientation as a protected ground in antidiscrimination legislation more broadly and in the Charter more specifically. Its exclusion in the original drafting
struck. This, the court found, is an imperative in which the government, as an elected, representative body, is in a better position to mediate these choices than the courts or tribunals. Eldridge v. British Columbia, [1997] 3 SCR 624. Here the Supreme Court of Canada found that failure to provide sign-language interpreters for hearing impaired people accessing healthcare was an infringement under section 15 of the Charter. Government response to this ruling was, however, very slow, such that two years after the ruling, there was still a significant failure to comply with the finding (Young, 2007).
147 The (Un) Usual Body of the Charter was not merely a silent omission, but in fact a glaring, obvious, and deliberate one, with specific and intended consequences. Although all such omissions are not the result of intentional systemic discrimination, it would require an incredible naivete to believe that all other omissions are merely the result of a lack of forethought.
It is also important to remember that the equality rights section of the
Charter provides only a guarantee of equality before and under the law, and equal benefit and protection of the law. This is not a general guarantee of equality
(Fudge, 1990). The Charter's guarantee extends only to the application of the law and governmental action and not to the larger social context of equality between groups or individuals in Canada. As Judy Fudge (1990, p. 60) points out:
"[u]nequal social relations which are not directly sanctioned by governmental action escape Charter scrutiny, despite the fact that these 'private' disparities of wealth and power are the cause of social inequality."
The Supreme Court has helped to solidify this distinction in the way that it has interpreted this section of the Charter. Only when governmental law clearly and explicitly underpins systemic discrimination is the government seen as an actor, thus allowing for an equality claim to arise (Fudge, 1990; Glasbeek, 1989).
Even when the allocation of 'private' rights is underwritten by state power, the
Supreme Court has demonstrated its reluctance to authorize judicial intervention into what is seen as the 'private' sphere (Fudge, 1990).46 By narrowing the scope
46 Retail, Wholesale and Department Store Union, Local 580 v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573. This case, one of a trilogy of strike cases that demonstrate the limits of Charter litigation, sought to argue that injunctions preventing peaceful secondary picketing were a
148 The (Un) Usual Body of the Charter through recourse to this 'private' sphere that is outside of judicial intervention, the Court has effectively removed the majority of state supported power from the 'public' sphere. Because, as Fudge (1990, p. 62) points out, "the assertion of bourgeois legal rights in the courts obscures the material and social conditions which ground the struggle for social transformation", the pronouncement that these do not constitute governmental action has the effect of producing an entire range of legal dealings, such as contract and property law, as outside of the 'public' sphere.
The production of such dealings as outside of government action functions to severely limit the ability of the Charter to address systemic inequalities.
Because systemic discrimination tends to occur through individual or collective action that appears (from the court's perspective) at arm's length to governmental actions, even when that action is supported through legislation, the Charter is ill- suited to address such inequalities. Without recognition of the government's role in maintaining the stratification of social inequalities and the subordination of systemically marginalized groups, these inequalities cannot be adequately addressed in legislation that purports to guarantee equality. While other anti discrimination legislation appears to include these so-called 'private' dealings within rights protection, the courts' reluctance to enforce positive rights limits law's ability to guarantee any substantive form of equality (Young, 2007).
violation of freedom of expression; however, it was decided based on the Court's decision as to the scope of the Charter's application (Fudge, 1990).
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Overview of usual legal strategy
The Charter has been heralded as a culmination of the Canadian government's efforts to protect marginalized and disadvantaged groups from discrimination and hatred, most especially because for the first time these protections were embedded within the constitution. However, as Kathleen Lahey
(1999) notes, the reforms did not come without significant backlash, particularly in relation to those citizens seen as belonging to sexual minorities. The cycles of violence continued when despite years of lobbying, sexual orientation was not included in the named grounds. Moreover, discrimination claims brought were denied expressly because 'sexual orientation' was not specified, even when other protected grounds were cited.47 These cases are particularly pertinent to transgendered and transsexed persons, as cases brought by gay men on the grounds of 'sex', claiming that they were discriminated against because they did not behave in congruence with their sex were denied, and it is these cases that appear to have the most in common with any challenges that might be brought by trans-identified people.
By invoking a ground that was not protected - sexual orientation - whether or not discrimination had occurred became a moot point. The relevant legal point became the interpretation of discrimination against homosexuals as being constituted always and only by discrimination based on sexual orientation, and the court's refusal to interpret any other ground as offering protection. In this way the
For example see Damien v. Ontario Human Rights Commission (1976), 12 OR (2d) 262 (HCJ); A-G Canada v. Mossop, [1993] 1 SCR 554, L'Heureux-Dube, Cory and McLachlin JJ. Dissenting, affg[1991] 1 FC 18, (1990), 71 DLR(4,h) 661 (FCA), rev'g (1989), 10 CHRR D/6064 (Can. HR Trib).
150 The (Un) Usual Body homosexuality of the claimant became the only potential point of interaction with anti-discrimination legislation, yet a point that was not enumerated within that legislation. This lack of recognition of potential intersections of discrimination is evident in the judicial backlash against affirmative action programs for blacks in the U.S., and appears later in trans jurisprudence as well, wherein a lack of recognition of the way that different axes of characters of persons may intersect and in doing so dramatically change the process and impact of discrimination, leads to either a denial of discrimination or insufficient remedy.
This is one of the ways that law functions to 'fix' sex. By refusing to understand the complexity of various intersections, instead resorting to an understanding of categories of oppression as operating within a system of binary logic, law's claim to truth is legitimated (Smart, 1990). By making sense of sex as operating within these two discrete oppositional categories of male/female, with the established hierarchy of male over female, movement between the categories appears as an impossibility. It is not merely that movement between the categories causes unease or confusion; it is that this movement is precluded by the binary logic. One is either male or female. If one is male, then by definition one is not female, and vice versa. While I discuss in Chapter 5 how movement between these categories has been considered within law, this consideration occurs only within very particular circumstances. Effectively the limiting of instances in which the binary logic fails functions to reinforce the veracity of the binary logic,
151 The (Un) Usual Body such that the situations in which the logic fails can be subjected to the magical belief required by disavowal.
This privileging of a binary system of logic within law reinforces the rigidity of the binary most especially because legal method functions to disqualify knowledge derived by other methods (Smart, 1990). While the knowledges generated by psychiatry and medicine have been absorbed and incorporated into law, as a means of extending law's influence, these knowledges also rely on a binary system of logic that disavows the mutability of the body. The authority with which these discourses claim to speak the truth functions to further the naturalization of sex difference within this binary conception in law. Sex is, then, effectively fixed within law.
Political and legal trans activism in this area has followed the gay and lesbian example of attempting to have protections read-in or written-in to provincial rights codes, with private members bills both federally and provincially being brought on many occasions, although none successfully. While gay and lesbian activists successfully fought to have "sexual orientation" read-in to
Charter equality guarantees after having it written-in to many rights codes, trans activism is currently trying to have similar trans protections, through the terms
"gender identity" or "gender expression" read-in or written-in to equality guarantees and human rights codes. The alignment of trans activism with gay and lesbian activism has been largely predicated on the understanding of "sexual minorities" as including trans, and the concept of an LGBT (Lesbian, Gay,
48 Disavowal and magical beliefs are discussed in greater detail in Chapter 6. This is discussed more deeply in Chapter 5.
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Bisexual, and Trans) community. This notion of community and the equation of trans with sexual minorities stems, as I argued in phase 2, from the conflation of sex/gender and sexuality within sexology and psychiatry and its subsequent medicalization, pathologization, and the legal adoption of these
(mis)understandings in law. What is erased in the call to create a cohesive group is the differences that permeate the distinctions of Lesbian, Gay, Bisexual, and
Trans. Most especially, trans stands apart from the others as being about gender/sex not sexual orientation, a distinction that many, beginning with
Kertbeny, Westphal, and Krafft-Ebing in the nineteenth century, have attempted to elide or play down. While there are commonalities between gay and lesbian issues and trans issues, there are also significant differences; differences that could bring the trans community to align itself more closely with other communities, such as disability rights groups, or undocumented workers' lobbies.
Nixon v. Vancouver Rape Relief Society
Kimberly Nixon applied as a volunteer to be trained and work as a peer counsellor for the Vancouver Rape Relief Society. She passed a screening process and was accepted into the program, as she had herself been counselled after leaving an abusive relationship. During her intake interview she disclosed that she was a male-to-female transsexed person, and was still put forward for training. At the first training session she was asked to leave by the facilitator after being asked, and acknowledging, that she was trans. She filed a human rights claim, which she initially won. However, the Rape Relief Society appealed on the grounds that the
153 The (Un) Usual Body discrimination did not constitute a violation of her human dignity; moreover, they argued that as a women's group, they were legally entitled to discriminate because they were protected under section 41 of the provincial Human Rights
Code (in keeping with the Charter Sections 1 and 15 (2)) that allows for historically disadvantaged groups to have exclusive memberships as a form of affirmative action.50
The appeal was granted because "Justice Edwards believed that
Kimberly's exclusion from a "relatively small obscure self-defining private organization cannot have the same impact on human dignity as legislated exclusion from a statutory benefit program"" (Harris, 2006, p. 175), and therefore she had not met the legal standard of discrimination. Moreover, Edwards J.'s ruling that the "absence of pre-transsexual surgery male characteristics is at least arguably an objective basis for determining membership in an 'identifiable group' of women"51 reinforces the importance of birth sex, and biological/genetic categories (Mayeda, 2005). Edward J.'s ruling was upheld by the British
Columbia Court of Appeal. In an even more problematic ruling, Justice Mary
Saunders states:
To force people, especially those in an organization such as the respondent, which has its own radical agenda, to associate with those who for some reason deeply offend their own avowed principles, can lead not to acceptance or at least toleration but rather, if not to hatred, at least to animosity. Section 41 of the Human Rights Code is intended, in my opinion, to give, in the cases within it, the right not to associate. Implicit, in my opinion, is that
50 Vancouver Rape Relief Society v Nixon, [2003] BCJ No 2899; 2003 BCSC 1936; 2005 BCCA 601 51 Nixon, BCSC, para. 99.
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freedom of association includes freedom from association.52
This ruling makes a frightening argument that allows hatred and discrimination to not only go unnoticed by the court, but in fact that the court offers its approval to such behaviour.
MacKay's (1986, p. 62) argument that "[t]he kind of conclusion that judges would reach both about hearing the issues and making the ultimate value choices would be conditioned by their world view" is evident in the invocation of a biological birth sex as indicative of an 'objective' measure of woman-ness, and the call to freedomyrom association. Both of these findings are highly problematic in that they function not only to legally justify discrimination, but more importantly, they function to fix what the court sees as the unnatural motion of Nixon's sex into the more palatable mobile conception of her natal sex assignment. She becomes simply male for the court's purposes, regardless of the court's apparent acceptance of her reassignment.
The maintenance of the transphobic status quo by the court is also demonstrated in a surprising lack of previous cases. While anecdotal evidence suggests that cases of discrimination against transsexed and transgendered individuals in areas of housing, employment, and access to services by governmental and non-governmental actors ought to abound in Canadian anti discrimination jurisprudence, their presence in actual litigation is mostly significant in its absence. In those instances where the legal system is involved
(whether through formal courts or less formal tribunals) there appears to be a
52 Nixon, BCCA, paras. 82-4.
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reluctance on the part of jurists to offer remedies commensurate with the historical disadvantage.53
Failure of legal strategy
What is not considered in the legal strategy of adding "gender identity" or
"gender expression" to existing legislation is, as Lahey (1999, p. 93) writes in relation to homophobia and equality guarantees, "the real problem is power, not terminology. The real solution is changing hierarchies of privilege, for without changing the allocation of political power, changes in the definitions of categories will not, by themselves, change the method of the law in this regard". The allocations of power and hierarchies' privilege do not offer trans-identified people equality, as evidenced by the court refusals to understand transphobic discrimination as a legal wrong, and the reading-in of "gender identity" or
"gender expression" to anti-discrimination legislation will not change that.
Moreover, the inclusion of protection is meaningless without the acceptance of wrongdoing on the part of the government and the courts. Citizenship, legal, and medical discourses are founded on an interconnected web that is foundational^ transphobic, and changes to human rights legislation or Charter guarantees offer no remedy for that.
Access to human rights legislation and Charter guarantees is also constrained by the applicant's ability to navigate the system. This navigation
53 Nixon is but one example. Other examples of specific trans jurisprudence are covered in Chapter 5.
156 The (Un) Usual Body requires a significant amount of information literacy, as well as cultural and financial capital. Moreover, the Charter does not explicitly cover economic or social rights, meaning that guarantees of security and equality do not include guarantees of a sufficient standard of living or the cultural capital to be able to demand the rights that are guaranteed in the Charter (Lugtig & Parkes, 2002;
Hutchinson, 1984). In addition, and as Fudge notes, ironically, it is the liberal rights guaranteed in the Charter itself, that provide another reason for other branches of the government (the legislature, the executive, and administrators) to perpetuate social and economic inequalities so as not to interfere with private activity and liberty (Fudge, 1990).
For these reasons, one of the foundational considerations in the trans fight for equality has to be a consideration of transphobia in a larger context. Reading the words "gender identity" into discourses that are founded on the simplistic and implicit assumption that sex is determined always and only by the registered natal assignment does not interrupt the transphobic nature of these discourses. While this kind of legal move is often considered the appropriate way to enact social change by offering human rights protection in law, similar legal considerations of other characters of persons have not eradicated racism, anti-Semitism, homophobia, misogyny, ageism, ableism, or more recently anti-Muslim activities, among other kinds of systemic discrimination. Moreover, such apparently inclusive changes function to elide the ways in which these discourses foundationally deny the mutability of sex, and shore up the notion of the transsexed body as disingenuous, fraudulent, and deceptive. The ramifications of
157 The (Un) Usual Body such an understanding play out in a myriad of situations and circumstances, thus suggesting that the only way to effectively interrupt institutional transphobia is through an explication - and at some point, hopefully, eradication - of the foundational transphobic position of such discourses.
Access to Healthcare
Gay activists successfully lobbied to have homosexuality removed from the ASM in 1973 (Stryker, 2008), a move that was driven in large part by the position that homosexuality was not a mental illness, and, as such, was not deserving of the pathology and stigma that follows from such a diagnosis. This argument is problematic in that it functions to reinforce the stigma associated with mental illness (by using stigma as a reason to remove this diagnosis rather than working to end the relationship of stigma to mental illness diagnoses); however, in the case of homosexuality, it removes a medicalized, diagnostic category from a group of people that did not require it. Homosexuals are not in need of medical intervention or treatment because of their homosexuality, and thus do not require codification within a medical system.
This is, however, a significant point of rupture between the LGB (lesbian, gay, bisexual) and T (trans) communities.54 Not all trans identified people want or need medical intervention, but for those that do, diagnosis is the key. In order to
This point is discussed in more detail in Chapter 5.
158 The (Un) Usual Body access treatment, whether that treatment is funded by insurance or paid for out of pocket, a medical diagnosis is required.
How would this diagnosis occur outside of the psychiatric model? The
'signs' and 'symptoms' of untreated GID, as well as the differential diagnoses, such as borderline personality disorder, obsessive compulsive disorder, and schizophrenia, 3 are mental not physical. The doctors best trained to diagnose these differential disorders are psychiatrists, suggesting that the appropriate medical specialty to correctly differentiate a GID diagnosis is psychiatry.
Furthermore, as many persons with severe GID find themselves disadvantaged and suffer stress because of it, it seems appropriate to recognize
GID as a disorder when a disorder is understood as a behavioural pattern that results in mental suffering due to a significant adaptive disadvantage (Bockting,
2009; WPATH, 2009). For those trans individuals who do not experience mental suffering or adaptive disadvantages, the diagnosis is inappropriate; they do not suffer from a mental disorder, and they should not then be (nor are they) subject to a diagnosis with one. Understanding a mental disorder to be a reflection of a social impairment, rather than a biological, psychological, or genetic anomaly inherent in the person, offers an opportunity to make sense of a disorder as being constructed publicly, yet suffered individually. It may also offer an opportunity to
55 These are three of the more common differential diagnoses. Bipolar psychosis and multiple personality disorder are two other examples of disorders that may manifest symptoms similar to GID. It is also important to note that the differential diagnoses can occur along with GID, such that a person may require treatment for both GID and schizophrenia, a situation that has only recently been accepted within psychiatry (Baltieri & Andrade, 2009; Manderson & Kumar, 2001; Caldwell & Keshaven, 1991; Borras, Huguelet, & Etyan, 2007; Harish & Sharma, 2003; Sohn & Bosinski, 2007). The potential for other disorders to be present in conjunction with GID offers a further justification for the involvement of psychiatry.
159 The (Un) Usual Body make sense of all mental disorders outside of the current model of understanding them to mean that there is something inherently wrong with the individual (either physiologically, psychologically, or both), while still offering medical assistance and treatment to those individuals suffering from such social impairment.
The recognition of barriers to complete social citizenship (as well as political citizenship, which is discussed in Chapter 6) as constitutive of a disability, as opposed to an inherent flaw in the individual, offers a politically advantageous position. This position allows individuals an opportunity to fight for inclusion and medical treatment, rather than setting them up as opposing outcomes. Moreover, it functions to expose the mechanisms of normativity at work in the construction of disability.
Attempts to divorce the transsexed body from discussions of madness and mental illness set the body outside of an important social context; a context that directly impacts many people's everyday lives as well as their relationship to the state. While the pathologization of gender difference within psychiatry as madness can be traced to the mid 1800s, as discussed previously in Phase 2, it is erroneous to then assume that this is the reason that today people often think of trans-identified people as crazy. The categorization of people as crazy, sick, or mad that occurs in common usage currently is, largely, a moralizing call to conform to acceptable norms, something that trans-identified people are seen as transgressing. Removing GID from the DSM is unlikely to have much of an effect
(if any) on this moralizing call.
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In May 2009, the Minister of Health in France, Roselyne Bachelot, called for the removal of transsexualism from the list of mental diseases; a call that was subsequently hailed as an historic step towards complete inclusion of transsexuals in citizenship. Many online activists (including Canadian activists) wrote on blogs and in news comments of their hope to see similar declassifications occur around the world.5 The French move is instructive in that Bachelot called for the removal because transsexuals felt that being classified as having a recurring or persistent mental disorder was stigmatizing (International Lesbian and Gay
Association: Trans Secretariat, 2009). However, the simple removal of the diagnostic category is unlikely to have a significant effect on the common perception that someone who is trans is crazy, delusional, or sick. Thus, the stigma of being trans remains, with or without the medico-legal label of recurring or persistent mental disorder. Certainly homosexuality's relationship to stigma has not been severed with its removal from the DSM.
What has been lost in the hailing of the French call as a victory, especially by Canadian activists, is the accessibility of treatment. Insurance companies, particularly American insurance companies, which have an impact on both
American insurers and Canadians with private insurance stemming from an
American carrier or parent company, have been loath to provide monies for treatments they deem 'elective,' and physical transition has often been caught up
56 For examples see http://birdofparadox.wordpress.com/2009/05/17/transsexuality-will-no-longer- be-classified-in-france-as-a-mental-illness/, http://www.tsroadmap.com/notes/index.php/site/comments/recent_international_trans_depathologi zation_network_events/, http://transgriot.blogspot.com/2009/05/transsexuality-declassified-as- mental.html, or http://donnarose.com/MyBlog/?p=386
161 The (Un) Usual Body in this definition. Removing the diagnostic category is likely to lead to an increase in such definitions, with a subsequent decrease in accessibility.
Funding by public healthcare has been contested and is not universally available across Canada, even though hormone treatment and gender reassignment surgery are internationally recognized as necessary and appropriate medical interventions (WPATH, 2009).57 Manitoba, following on the heels of the
April 2009 Alberta delisting of SRS, announced in August 2009 that they will no longer be funding surgery.58 As of 2009, no Canadian province59 provides funding for genital surgeries for female-to-male transsexed people, a series of surgeries that routinely cost between 40 and 150 thousand dollars; yet they all require evidence of surgery in order to change citizenship documentation, such as birth certificates. A significant gap in the literature concerning access to identification in Canada is the lack of a comprehensive inter-provincial comparison of gender reclassification policies and practices. The inconsistencies of such policies are anecdotally noted when trans people from different provinces discuss policy requirements, yet this form of analysis has not been documented in Canada. Such a comparative study is essential to demonstrate the inconsistencies between the requirements of different policies and/or practices in order to consider the efficacy of such policies on a larger scale.
This is more deeply considered in Chapter 5 58 I he Alberta delisting is considered extensively in Chapter 5 59 New Brunswick is the only province for which specific funding information is not available; however, anecdotal evidence suggests that this surgery is not covered. Funding information for the Teintones is also unavailable This study is the basis of my post-doctoral research program.
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The importance of such a comparative study is demonstrated by the inconsistencies between gender reclassification requirements for birth certificates from one jurisdiction to another. As Dean Spade (2008) notes in relation to gender reclassification for American birth records: the requirements of some states to demonstrate a lack of primary sex characteristics of the birth assigned sex, while other states require evidence of primary sex characteristics of the chosen sex assignment, means that similarly situated people will be treated differently in obtaining an amended birth certificate. Consider, for example, two transgender men who have undergone hysterectomies, bilateral mastectomies, and chest reconstruction, but were born in different provinces. One was born in Alberta, where the surgical construction of a penis is required in order to alter his birth record, and the other was born in Ontario, a province that requires proof of a lack of female characteristics (typically uterus and breasts); this means that one man can access a birth certificate that lists him as male while the other's birth certificate can only read female. Only through a comparison of these policies can this inconsistency be revealed. Moreover, the changing of the birth record has significant effects beyond the issuance of the certificate; as proof of citizenship and identity, the birth certificate is required for many other forms of public participation. This means that the determination of a person's sex for the birth record has dramatic effects.
61 Vital Statistics Act, R.S.A. 2000, c. V-4, s.22 62 Vital Statistics Act, R.S.O. 1990, c. V-4, s. 36(2)
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Intersectionality
In 1998, the Ontario Health Insurance Plan (OHIP) delisted SRS.63 Eight years later, in Hogan v. Ontario (Health and Long-Term Care)64 in 2006, OHIP was ordered to fund surgery for 3 of the 4 claimants.65 What the majority reasons in Hogan refused was an understanding of the intersectionality of transphobic discrimination. According to the majority reasons: but for the transgenderism, there is no disability: transgenderism is a disability and the disability is transgenderism. So, when a transgender person experiences discrimination on the ground of disability there is discrimination on the ground of gender or sex. But the effect might not be cumulative. Thus, the discrimination can be either disability or sex discrimination, albeit disability is one form of discrimination and gender or sex is another. Notwithstanding, the majority is not inclined to conclude that the result of the constructive discrimination these three Complainants suffered is compounded or double impact discrimination because they are not mutually exclusive. The rationale is, indeed, race is also one form of inequality and gender or sex is another. By comparison, too often they intersect, giving rise to compounded or double impact discrimination because they are not mutually exclusive. The difference lies in the nuance that one's race is not one's gender, and one's gender is not
SRS is also sometimes referred to as gender reassignment surgery (GRS). References to either are considered within the scope of this research, to be referring to the same thing. While academically there have been discussions about the most appropriate terminology (Hausman, 1995; Heath, 2006), these debates are not relevant to the larger discussion of the requirement of surgery for documentation and/or the access to surgery through public healthcare funding considered here. 64 Hogan v. Ontario (Health and Long-Term Care) 2006 HRTO 32 [Hogan]. In this case, 3 of the 4 claimants were successful in having their government funding for SRS reinstated. The Tribunal found that these three claimants were exceptional cases, in that the government had not taken into consideration the length of time that the process required when instituting a grandparenting scheme after delisting the expense from the Ontario Healthcare Insurance Program. The claimants successfully argued that they had been discriminated against based on the protected grounds of both disability and sex; however the Tribunal refused an intersectional understanding of the two axes of discrimination, instead understanding them to be inextricably linked, yet not modifying or intensifying the effects of discrimination in ways that intersectional understandings of discrimination have been understood. The circumstances of the delisting and the ruling in Hogan are discussed at length in Chapter 5.
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one's race. They are immutable characteristics that exist independently.
Presumably, then, the intersectionality of disability and sex in relation to trans embodiments are decidedly different than the intersectionality of race and gender.
According to the majority, a black woman's experience of discrimination is a compounding of her discrimination based on gender and race, whereas a transsexed person's experience of discrimination is not a compounding of their discrimination based on disability and gender. An interesting, but unconvincing argument, when we consider the difference of the sex or gender discrimination faced by someone who is trans as compared with that faced by a non-trans woman. The denial of intersectionality functions to erase the background norm through which the ruling occurs (Iyer, 1993-1994). This has a similar effect as the uncoupling of class from equality. As Fudge (1990, p. 61) notes: "if race is not connected to class, equal opportunity and merit, and not pervasive social relations, are identified as the cause of disparities of education, income, wealth, and power."
en Similarly, as Vice Chair Mary Ross Hendriks notes in her partially dissenting reasons:
The danger in adopting the single axis ground of disability in this instance is that it negates the importance of the discrimination based on sex, and falls back to the bio medical model of disability discourse, ignoring the social importance of their incomplete transitions to these Complainants' lives, and thus negating the importance of their transsexuality to their own personhood and the diminishment they felt as a result of the state's arbitrary action.
Hogan paras. 128-129 Hogan para. 432
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Essentially, if the relationship between disability and sex are used merely to state that a transsexed person experiences discrimination based on both, although not compounded discrimination, the result is to further the discrimination on the other ground. Moreover, Hendriks acknowledges what her colleagues did not, which is that "to fail to recognize the systemic discrimination in this case against transsexuals as a group for what it is only perpetuates their exclusion within society, and is itself providing the environment for future discrimination." 8
Unfortunately, Hendriks' call has not been heeded.
Following in the footsteps of trans-identified people in Ontario 11 years earlier, there are human rights claims pending in response to the April 2009
Alberta delisting of GRS;69 however, the claims in Hogan were successful in part because the surgery was considered medically necessary, but mainly because the people who had begun moving through the Clarke Institute's very slow moving system were understood by the court to be entitled to complete the treatment they had, in good faith, entered into. When the OHIP removed coverage for surgery,
October 1st, 1998, Michelle Hogan, Martine Stonehouse, and the claimant identified as A. B. were all patients at the Clarke Institute in Toronto and had begun the process of physical transition. These three of the four claimants named in the case were successful; the fourth claimant, Andy McDonald, the sole female-to-male represented, was unsuccessful because the court ruled that as he was not a patient of the CAMH prior to the delisting of the surgery, he could not have an expectation of treatment, and therefore the delisting did not have a
Hogan para. 462 This delisting is discussed in depth in Chapter 5.
166 The (Un) Usual Body disproportionate adverse impact on him. McDonald's desire for phalloplasty and the Clarke institute's position on the surgery as 'experimental' were noted in the court's decision, and while this was not a deciding factor in his case being denied, it has been, and continues to be used as justification for the denial of genital surgeries for FTMs in a number of provinces across the country.
There is a common misunderstanding within Canadian trans communities that Hogan resulted in a re-instatement of coverage for all transsexuals in Ontario, however this was not the case. Two years after the 2006 Ontario Human Rights
Tribunal result in Hogan, in May 2008, the Ontario government announced it would voluntarily relist gender reassignment surgery. This announcement was made with the proviso that there was not a framework in place, and that this would require consultation with stakeholders prior to its actual implementation
(CPATH, 2008). It is commonly believed that this announcement came about as a result of the successful outcome in Hogan and the possibility of further pending cases. Community groups, such as The Trans Health Lobby Group, have also claimed that the reinstatement of funding was a result of their direct lobbying
(Rainbow Health Network, 2008). However, what most likely precipitated the reinstatement was the possibility of the delisting being ruled discriminatory under the Charter, a possibility with far reaching consequences for all of Canada. A
Charter challenge was scheduled to begin two days after Ontario's announcement that it had voluntarily relisted (communication, 2009). The challenge was averted by the relisting announcement, yet the implementation of funding has been a time and energy consuming process filled with discussion, debate, and lobbying. In
167 The (Un) Usual Body addition, the decade between the initial delisting (1998) and the voluntary relisting (2008), can hardly be seen as an unqualified victory for the trans community, and the negative social, economic, and health consequences for transsexed Ontarians during that decade, will never be fully known.
Access to Documentation
Because access to documents of citizenship for transsexed people are tied to genital surgeries, access to healthcare funding equates to access to citizenship.
The relationship of these documents to citizenship is more closely examined in
Phase 4. The 2009 government delistings (in Alberta and Manitoba), combined with the refusal of many private insurance companies to fund surgeries, means that Canadian transsexed people already face significant barriers to equal citizenship. The removal of Gender Identity Disorder from the DSM would likely only increase those barriers.
Citizenship requires the registration of evidentiary documentation, such as birth certificates. Even though medical discourse suggests that sex is mutable, as evidenced by the psychiatric, endocrine, and surgical studies of sex reassignment, there is a foundational understanding of sex within such discourses as fundamentally immutable - fixed at birth by the natal assignment. Legal discourses function in a similar way, which is understandable given their strong association and reliance on medical discourses for making sense of transsexed bodies.
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While some trans activists argue for the removal of GID from the DSM in order to remove the stigma of mental illness from trans-ness, this is a move that appears to be based in false loyalties (a connection with LGBT at the expense of the T) with little attention to practical aspects of people's lives. In order to access physical transition, transsexed people require a diagnosis; a diagnosis that can only be differentiated by a doctor trained and experienced in psychiatry.
Moreover, the stigma of drastically differing from sex/gender norms will not be removed with the removal of the psychiatric diagnosis. Perhaps a better strategy, then, would be for transsexed people to align themselves with groups that are fighting to remove stigma and change our understanding of mental health and illnesses or disorder, as well as with groups working toward changes in the way that citizenship and identity documentation is accessed.
Systemic discrimination is difficult to prove under anti-discrimination law, because the law is designed to make sense of individual categories of oppression perpetrated by lone actors. As Kerri A. Froc (2010, p. 47) concludes: "introducing the theory that systems of oppression are not separate phenomena but a matrix - complex systems of oppression and privilege, working together synergistically, whose very strength lies in their ability to obscure their effects - may help to illuminate a claimant's experience of oppression for an otherwise "unseeing" court." However, without this matrix, a matrix that is currently not being used to make sense of trans discrimination, the complexity of the systems of oppression facing trans identified Canadians is unlikely to be significantly altered by anti discrimination law. This means that systemic transphobia and trans discrimination
169 The (Un) Usual Body are unlikely to be "seen" by courts as discrimination, and remedies, even when offered, are unlikely to operate to remove substantive inequalities for trans
Canadians.
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Chapter 5: Human Rights, Transsexed Bodies, and Healthcare in Canada: What Counts as Legal Protection?70 Introduction
The pursuit of rights is "rendered technical" (Rose N., 1999, p. 79) through the employment of a particular template; identity-based groups shape their demands into a recognizable format that infers the right to do identity- defining things including demanding rights (Kennedy D., 2002). Within Canada, rights protection is offered at different levels with different consequences through the Canadian Charter of Rights and Freedoms and federal and provincial human rights legislation. The position of trans communities within such
legislation is contentious, forcing activists to make decisions regarding the most appropriate legal strategy (or identity-based template) to employ in order to prevent ongoing discrimination.
Following on the efforts of gay and lesbian lobbyists, the majority of efforts directed towards pursuing rights within trans activism in Canada have been through the insistence on specific protections - specifically the addition of a discrete or insular category of protection through the addition of the words
"gender identity" and/or "gender expression." In this paper I argue that this
strategy is misguided. Through an examination of access to gender-confirming healthcare situations in two provinces, this article demonstrates that the inclusion of specific protections would not necessarily have changed the outcome of these
A version of this chapter has been accepted for publication. Mandlis (accepted February 2011). Canadian Journal of Law and Society. The Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being schedule B of the Canada Act 1982 (UK), 1982, c.l 1 [Charter]
171 The (Un) Usual Body situations. Neither would this strategy overcome the obstacles and barriers faced by many trans Canadians due to systemic discriminatory practices. The insufficiency of this legal strategy is further exacerbated by the resources necessary to enact such changes to antidiscrimination legislation across the country and the short falls of legal remedies inflected by the liberal individualist perspective of courts. While many theorists have argued that inclusion in antidiscrimination legislation is an insufficient but necessary step to substantive equality, this paper demonstrates, as Margot Young (2007, p. 322) has argued, that there is a danger that in some situations the pursuit of rights through antidiscrimination law may actually impede social change because legal discourse, especially when it reinforces and confirms dominant ideas, "speaks in authoritative timbre."
The Process of Transphobia
Jurisprudence involving trans identified individuals in Canada has predominantly been engaged by transsexed individuals, and any potential victories have been seen as only affecting that discrete minority of the community. Because the majority of cases involve ajudicial determination of the individual's sex, or a case of discrimination on the grounds of sex based on transphobia, and because the determination of the individual's sex is usually based on medical evidence of physical transition (either simply for a determination of sex or for a finding of discrimination based on sex), instances in
172 The (Un) Usual Body which a trans person's gender has been confirmed by the court are considered by most activists only to effect transsexed communities, and not larger trans communities as a whole (Spade, 2008; findlay, Laframboise, Brady, Burnham, &
Skolney-Elverson, 1996). Within larger trans activist communities this has been a point of contention, with some activists calling for measures that will include all manner of trans embodiments, including those who do not engage in any form of medically assisted transition and those who engage only in temporary forms of cross-gender behaviours (such as cross-dressers) (findlay, Laframboise, Brady,
Burnham, & Skolney-Elverson, 1996).
Activists have critiqued the use of currently existing categories, such as sex/gender or disability, arguing that they do not capture the specificity of transphobic discrimination (findlay, Laframboise, Brady, Burnham, & Skolney-
Elverson, 1996); protection in law is seen in this larger context as only being offered when "gender identity" and/or "gender expression" have been specifically named in legislation. This tactic appears to stem largely from the gay rights movement, which is unsurprising given the grouping of trans with sexuality in
LGBTQ (Lesbian, Gay, Bisexual, Trans, Queer) communities, sexual minorities studies, psychiatry, and so on. I am not, however, suggesting that queer communities have not sometimes been important allies for trans activism, or that
72 See especially: Canada (Attorney General) v. Canada (Canadian Human Rights Commission) 2003 FCT 89, 228 FTR 231; See also: Kavanagh v. Canada (Attorney General) [2001] CHRD No. 21; Kimberly Nixon v. Vancouver Rape Relief and Women's Shelter, [2002] BCHRTD No. 1; Magnone v. British Columbia Ferry Services and others (No. 3), 2008 BCHRT 191; Montreuil v. National Bank of Canada, 2004 CHRT 7, 48 CHRR 436; Sheridan v. Sanctuary Investments Ltd. (1999), 33 CHRR D/467; Mamela v. Vancouver Lesbian Connection, [1999] BCHRTD No. 51; Ferris v. OTEU, Local 15, [1999] BCHRTD No. 55; Vancouver Rape Relief v. British Columbia (Human Rights Comm), 2000 BCSC 889;
173 The (Un) Usual Body trans communities and homosexual communities do not have many similarities and interconnections; it is that I am asking that this direct link, which is usually made without thought, between lesbian and gay issues and trans issues, be questioned in order to identify and evaluate alternative legal strategies.
Trans communities represent themselves as not protected within legislation based on a conflation of the substantive inequalities faced by trans identified people on an everyday basis and a lack of a specific minority status as indicated by the inclusion of a discrete category of protection within antidiscrimination legislation throughout the country. I say "represent themselves," because as demonstrated later in this paper, protections have been seen by human rights tribunals as already including trans identified people under the grounds of disability and sex; yet activists continue to push for specific inclusion of "gender identity" and/or "gender expression" in law. The push for the creation of a discrete and insular minority category has been supported by groups within LGBTQ communities and has been characterized as a better route for trans communities than pursuits under already established grounds (such as sex and disability); however the arguments used to support this position are problematic. For example, findlay et.al argue that "gay, lesbian and bisexual communities have instead consistently demanded to be accepted as normal, medically and legally, and not ill or disabled" (findlay, Laframboise, Brady,
J An important and timely example of this is the Private Members bill, Bill C-389 (An act to amend the Canadian Human Rights Act and the Criminal Code (gender identity and gender expression), 3rd Sess., 40th Pari., 2010), which is scheduled for third reading and debate in the House of Commons in February 2011. This Bill is designed to add gender identity and gender expression to both the criminal code (for inclusion as a ground for hate crimes) and to federal human rights legislation. The imminent federal election is, however, likely to kill the bill before it can be passed into law.
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Burnham, & Skolney-Elverson, 1996, p. 27). This argument functions to further stigmatize people with disabilities, as well as to construct a template through which trans communities ought to demand equality. From this perspective homosexual communities demanded that they be acknowledged as normal and equal through the construction of a new category of protection, rather than through the expansion of an existing category. Thus, a new category, rather than the expansion of an existing one, is seen as the strategy that best presents this acknowledgement of normalcy.
What is lost in the use of this template is that while there are many similarities between trans communities and homosexual communities and the barriers faced by each, there are also many significant points of rupture. Access to documentation is one of the most important legal differences between gay and lesbian issues and trans issues (for an in-depth examination of documentation difficulties in the United States see (Spade, 2008). For Canadian examples see:
(Namaste, 2000; 2005; Noble, 2004; 2006; findlay, Laframboise, Brady,
Burnham, & Skolney-Elverson, 1996)). A second important difference is the need for specific medical assistance, and the barriers to healthcare faced by trans individuals (Namaste, 2000; 2005; Spade, 2008; Spade & Arkles, 2005; findlay,
Laframboise, Brady, Burnham, & Skolney-Elverson, 1996). While people who identify as lesbian or gay do not require medical intervention for their homosexuality, some trans identified people do require gender-confirming healthcare and medical intervention for their trans-ness. Access to healthcare for trans individuals who do not require medically assisted transition can also be
175 The (Un) Usual Body negatively impacted by transphobia. In medical situations, the exposure of the genitals makes transphobia quite likely, as medical workers most often assume that a person's genitals speak the 'truth' about their sex and gender. This is not to say that homophobia does not cause barriers to healthcare in some instances, but rather that the situations faced by trans individuals are decidedly different than those faced by homosexual individuals. These two very significant differences - access to healthcare and access to documentation - are, perhaps, of more importance when thinking about legal strategy than any of the commonalities because these are two of the main areas in which trans identified people regularly experience systemic discrimination.
Without government-issued ID people are essentially located in a state of limbo; they cannot legally work, secure accommodation, or access any number of services that are vital to their health and well-being physically, mentally, and socially. Gay and lesbian citizens do not face this kind of discrimination.
Ubiquitous homophobia and heteronormativity may lead to discrimination and denial of access to many things, but documentation access is not a homosexual issue. ID allows gay men and lesbian women to secure legal employment and accommodation, to board airplanes and cross national borders, to get library cards and open bank accounts, to join clubs, play sports, and access healthcare; nowhere on that ID does it state that the person is homosexual. So while a homosexual person might experience discrimination in securing access to any of the things mentioned, that discrimination is fundamentally different in process than the discrimination faced by undocumented people, or by those whose presentation is
176 The (Un) Usual Body incongruent with their ID. What this difference means is that transphobic processes operate differently than homophobic processes.
The differences in process between transphobia and homophobia make the trans activist position of using the homosexual template insufficient. But is this insufficiency harmful? I argue that it is. Moreover, the use of existing categories offers the potential to take advantage of and complicate these categories in ways that offer more substantive social change for all members of trans communities, not only those who enter into a medically assisted transition.
Access to Healthcare
Publicly funded sex reassignment surgery (SRS)74 is contested and is not universally available across Canada. Publicly funded healthcare in Canada is regulated through the Canada Health Act, which states its primary objective is to
"protect, promote and restore the physical and mental well-being of residents of
Canada and to facilitate reasonable access to health services without financial or other barriers." 75 While gender-confirming healthcare, such as hormone treatment and/or surgery, is internationally recognized as necessary and appropriate medical
SRS is also sometimes referred to as gender reassignment surgery (GRS). References to either are considered within the scope of this paper to be referring to the same thing. While academically there have been discussions about the most appropriate terminology (see: (Hausman, 1995; Heath, 2006)), these debates are not relevant to the larger discussion of the requirement of surgery for documentation and/or the access to surgery through public healthcare funding considered here. Access to surgical intervention is not the only barrier to healthcare, nor is it necessary or desired by all members of the community. It is, however, important to recognize that it is necessary and desired by some members of the community, and it is not readily available for many who need it. Moreover, the linking of citizenship documents and other government issued ID with surgical status for trans people makes surgical access an important, although insufficient, point in any consideration of trans equality. 75 Canada Health Act, RSC, 1985, c. C-6, s.3.
177 The (Un) Usual Body intervention for some trans identified people, suggesting that it falls within the scope of the Canada Health Act and should therefore be funded, provincial governments have not always addressed it as such. The Canada Health Act offers a legal basis for courts to order provinces to fund medically necessary care; yet the courts have continually been reluctant to direct provinces to pay for particular medical services.76 Access to gender-confirming healthcare has not been specifically tested through the Act, but it appears unlikely that it would be seen as an exception.
Further complicating this situation is the differing accessibility to gender- confirming healthcare across Canada, with five provinces refusing to fund surgeries for transsexed people and five dealing with funding on a discretionary basis.77 Trans Canadians wishing to access gender-confirming healthcare outside of the public system are still required to navigate the public system for all but final stage surgeries as the other services (such as hormone prescription, psychological evaluation, and initial surgeries) are only available through the public system, and cannot be paid for out of pocket. For some, this means that their province of residence places them in a medical (and legal) limbo - unable to access gender-confirming healthcare without changing provincial residence.
Difficulties in accessing gender-confirming healthcare are one of the ways that some trans people are discriminated against on a regular basis. While it is not a
76 See e.g.: Cameron v. Nova Scotia (Attorney General) (1999), 177 DLR (4th) 611, [1999] NSJ No. 297; [1999] NSJ No. 33; leave to appeal refused (2000), [19991 SCCA No. 531, 259 NR 397, [2000] 1 SCR viii; reconsideration refused (2001), SCC; Brown v. British Columbia (Minister of Health)(\990), 48 CRR 137, 66 DLR (4th) 444. 77 As of 2010, British Columbia, Saskatchewan, Ontario, Quebec, and Newfoundland provide funding on a discretionary basis; Alberta, Manitoba, Prince Edward Island, Nova Scotia, and New Brunswick do not fund surgeries. Data for the Territories is not available (CPATH, 2008).
178 The (Un) Usual Body problem for all trans identified Canadians, it offers an interesting opportunity to consider the legal strategies designed to prevent transphobic discrimination.
One strategy might be to take this kind of battle outside of antidiscrimination law, and direct the challenge elsewhere. This is a strategy that would be especially effective in certain situations, such as access to documentation, but may also prove useful for access to gender-confirming healthcare. For example, a trans identified person could argue that the denial of access to gender-confirming healthcare is an unjustified interference with the liberty and security of the person. R. v. Morgentaler would be useful in this claim. In Morgentaler, the Supreme Court of Canada ruled that section 7 of the
Charter was offended by legislation prohibiting abortion because it interfered with the liberty and security of the person; while the court was mainly concerned with the interaction of the criminal prohibition on abortions performed outside of public hospitals and the subsequent criminalization of women seeking abortions outside of this process, the logic used in the ruling also considered the accessibility (or lack thereof) of abortions under these restrictions. In finding that a woman's right to liberty and security of the person was harmed by the limitations on access to abortions, Chief Justice Dickson and Lamer J. noted:
"State interference with bodily integrity and serious state-imposed psychological stress, at least in the criminal law context, constitutes a breach of security of the
7Q person." They also found that the delay caused by the mandatory procedures of section 251 of the criminal code resulted in a second independent breach of the
78 R. v. Morgentaler, [1988] 1 SCR 30, Dickson CJ, Lamer J [Morgentaler]. 79 Morgentaler page 32.
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right to security of the person, and that the psychological harm of such delays was
O A
clearly established. While not directly similar, the logic of the reasoning offers
the potential for it to be extended to include SRS.
While SRS does not fall under a criminal law context, suggesting that it is
outside of the context envisioned as a breach of security in the first instance, the
barrier to necessary medical intervention produced by a refusal to fund SRS could
still be seen as state inference with bodily integrity. Refusing to publicly fund
SRS leads, not only to significant delays in accessing bodily integrity for those
wealthy enough to be able to pay out of pocket the tens of thousands of dollars for
surgery, but to an outright denial of service to those less well off. As well, the
denial of access to initial treatment required prior to the final stage surgeries
appears as an obvious interference with bodily integrity. The complications
arising out of such delays or denials of care are well documented (Brown G. R.,
2010; Baltieri & Andrade, 2009; Gehi & Arkles, 2007; Gorton, 2007). Could not the psychological stress of that denial, combined with the criminalization of
almost any activities that might generate sufficient revenue in a short period of time (especially when combined with access to documentation issues) be seen as a serious breach of the right to security of the person?
This argument becomes even clearer when combined with the dissenting opinion of Mclntyre and La Forest JJ who stated that the assertion to be free of state interference needed to be limited to situations in which the imposition of stress or strain coincided with an infringement of another right, interest or
Morgentaler page 33.
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o l freedom that also warranted protection under the idea security of the person.
While specific criminal sanction is not the concern with access to SRS, rights of citizenship and documentation are. This means that barriers to SRS and other gender-confirming healthcare not only impact on the liberty and security of the person through an inability to access healthcare - a situation that could be seen as similar to access to abortion - but that these barriers also cause an infringement on access to documentation, and through that, ultimately, citizenship.
The relationship of healthcare access to documentation in the Alberta situation is an example of what some scholars have termed a "double bind" for trans people (Gehi & Arkles, 2007; Gorton, 2007; Spade, 2008). As trans legal scholar Dean Spade (2008) has argued in American jurisdictions, by removing the funding for SRS, Alberta is in effect taking the position that SRS is not a legitimate medical intervention, that it is somewhat "cosmetic" or "experimental," or minimally, that it is not important enough to deserve public funding. Yet, when considering policies for the changing of provincially issued ID, such as birth certificates, Alberta is simultaneously taking the position that SRS is the only legitimate evidence of gender change. Essentially, then, Alberta is arguing that for the purposes of publicly funded healthcare, gender-confirming healthcare (in particular SRS) is not legitimate, but for the purposes of issuing ID, this healthcare is the standard of legitimacy. For most trans identified Albertans, this means that they will be unable to access gender-confirming healthcare because it is marginalized and dismissed through a lack of public funding, and then they will
81 Morgentaler, page 39, Mclntyre & LaForest J J, dissenting. 82 The Vital Statistics Act, RSA 2000, c. V-4, s. 22.
181 The (Un) Usual Body be unable to access ID because they do not have proof oflegitimizing healthcare.
Moreover, trans identified individuals cannot merely choose to live in provinces that favour their needs in order to access services, as ID requirements are tied to factors, such as place of birth, that cannot be chosen or controlled. Surely, this could be argued to constitute not only a stress or strain on the individual, through a lack of access to treatment, but also an infringement of another right, freedom, or interest, that of access to full benefits of citizenship through documentation?
What the above strategy does not do, however, is offer protection to those trans individuals who do not access gender-confirming healthcare. While it may offer a different strategy for those trying to use the Charter as a means to ensure protection, and in particular for those interested in securing protections for transsexed individuals, there are obvious limitations to its effectiveness. I now turn to the situation in Ontario in 1998 in order to examine other legal strategies.
Case 1: Ontario 1998
In 1998, the province of Ontario was making deep cuts in all areas due to a financial crisis. During these cuts, the Ontario Health Insurance Plan (OHIP) removed funding for SRS. This was one cut to services amongst a number of
It is also important to recognize the problems inherent with suggesting that individuals be forced to move provinces in order to access healthcare or ID. Particularly when considering the barriers to legal employment already faced by many within this community, suggesting a move to another province only compounds the financial burden faced by those unable to access gender-confirming healthcare. Moving provinces also means moving away from family and social supports, increasing both psychological and financial stress for individuals. Moreover, all of the Canadian provinces require some form oflegitimizing surgical intervention for gender re-classification. CED (West 3rd), "Vital Statistics," at §141-146. Vital Statistics Act, RSNS 1989, c. 494, s. 25. Vital Statistics Act, SNB 1979, c. V-3, s. 34. Vital Statistics Act, SN 2009, c. V-6.01, s. 26. Vital Statistics Act, SPEI 1996, c. 48, s. 12.
182 The (Un) Usual Body other cuts, however the process used to delist SRS was decidedly different than that used to remove the other services. Transsexed community members affected by the cuts filed human rights claims, arguing that the removal of public funding for SRS constituted discrimination on the grounds of sex and disability. The case concluded in 2006 in Hogan v. Ontario (Health and Long-Term Care) when
OHIP was ordered to fund 3 of the 4 claimants' surgeries. Two years later, in
2008, SRS was voluntarily relisted by OHIP.
Both enumerated and analogous grounds of protection are guaranteed under the Charter. Most provincial legislation, however, restricts that protection to a finite list of grounds; Ontario85 and Alberta,86 both use such restrictive legislation. For the claimants in Hogan, this meant that they were restricted in their legal strategy. They needed to argue discrimination on grounds already included in the provincial legislation rather than arguing that gender identity and/or gender expression ought to be read as analogous. The claimants in Hogan, therefore, claimed they had been discriminated against on both the grounds of sex and disability.
The province of Ontario acceded to the idea that Gender Identity Disorder
on was a disability. However, the province claimed that sex discrimination was an inappropriate ground. Ontario claimed that sex discrimination protected people from being discriminated against for being male or female, or for characteristics that distinguish women from men - like pregnancy. The claimants, as far as
Hogan v. Ontario (Health and Long-Term Care) 2006 HRTO 32 [Hogan] 85 Ontario Human Rights Code, RSO 1990, c. H.19 86 Alberta Human Rights Act, RSA 2000 c. A-25.5 87 Hogan, para. 17
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Ontario was concerned, had not been discriminated against in this way, but rather for transitioning between male and female - something that should not be covered under sex. The tribunal, however, was unconvinced. In their majority decision,
Vice-Chair Patricia E. DeGuire and Member Ajit Jain wrote: "the absence of a specific sex falls within the rubric of the term sex, just as atheism can fall within the ground of creed or religion. Gender ambiguity [...] is a form of sex. Because a person is mentally or anatomically not definitely male or female does not diminish one's status as a person." The ground of sex in this reading, therefore, obviously includes trans-embodiments, and not merely transsexed embodiments, but all forms of trans embodiment.
What is most important in this ruling is not merely the inclusion of transsexed embodiments under the grounds of sex, but actually the wider inclusion of all trans embodiments. Legal scholarship about trans law usually focuses on how the court determines the sex of an individual, making judicial decision-making regarding gender classification the overwhelming focus of this scholarship (Spade, 2008). However, these cases typically involve transsexed individuals, with the courts relying on medical, and especially surgical, evidence to determine the individual's sex. Hogan is clearly a departure from this, and offers the potential to make sense not only of transsexed bodies, but also of other forms of trans embodiment under the ground of sex, while leaving open the categorization of a person as necessarily belonging to one of either male or female.
88 Hogan, para. 125. The partially dissenting opinion did not contest this point. 89 For examples of such scholarship see: (Chambers, 2007; Mathen, 2004; Currah & Minter, 2000; Lamble, 2009).
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Unfortunately, this broad understanding of sex does not do away with the notion of a categorization of sex, or a court's desire to determine an individual's sex for a host of other purposes, such as housing within sex-segregated institutions. It does, however, offer the potential to understand non-surgical and non-medical trans bodies within law, and most especially within antidiscrimination discourse as it already is written. This appears to make the new categories of gender identity or gender expression unnecessary, as the open-ended definition of sex used by the Ontario tribunal covers all forms of trans embodiments.
Case 2: Alberta 2009
In Alberta in 2009, then Health Minister Ron Liepert cut funding for SRS in what he and Premier Ed Stelmach termed a cost saving measure. During question period at the Alberta legislature, Liepert defended the delisting saying that it was one of several "tough choices" (Lang, 2009b). Liepert went on to comment that "Unless we get a handle on expenditures, we won't have a publicly funded health-care system" (Audette, 2009a). Yet the only programs removed from public funding were chiropractic services and SRS. According to Liepert
"the province had to reconsider the two services, given its tight budget situation"
(Lang, 2009a). Cutting chiropractic services was estimated to save the province
$53 million per year (Alberta Provincial Budget, 2009). Delisting SRS amounted to a cut of $700,000 within a health care budget of $12.6 billion, amid a number
185 The (Un) Usual Body of increases totalling $558 million (Alberta Provincial Budget, 2009). These cuts also occurred in a healthcare budget that saw the removal of insurance premiums - thereby reducing the income of the insurance plan by $1 billion (Alberta
Provincial Budget, 2009). Obviously, the financial climate in which these cuts occurred was radically different than in Ontario, and appears not to support
Liepert's claims that this was a necessary removal of service based on difficult
Cabinet decisions regarding the distribution of scarce resources.
Alberta did not consult with qualified experts prior to cutting SRS,90 and
Liepert mused in question period, that perhaps "the province needs an expert panel to determine what qualifies as a medically necessary service" (Audette,
2009a). Notwithstanding Liepert's public comments that the financial climate in
Alberta warranted this cut, the economic evidence suggests a different situation.
When a lack of medical expertise in making the decision and the economic circumstances, as demonstrated in a budget with increases in many areas of spending, are combined with Alberta's historical positions against minority groups, like the lesbian and gay communities, the decision appears to be ideologically motivated, rather than medically or fiscally driven.
If the economic argument is so obviously flawed in the Alberta case, what purpose do the financial comments of the Minister serve? Looking to Hogan for an answer, the financial arguments seem to play an invaluable role in a proactive
90 The two psychiatrists charged with overseeing the Alberta Healthcare GRS program were not contacted. No other psychiatrists in Alberta are able to provide an initial diagnosis leading to funding for GRS under the previous program or the current grandparenting scheme; therefore, no other psychiatrist in the province should be considered to be a qualified expert in this area. 91 One example of this is Alberta's repeated and deliberate choice not to include sexual orientation in provincial human rights legislation, as commented upon by Cory J. in Vriendv. Alberta [1998] 1 SCR 493, para. 62 [Vriend].
186 The (Un) Usual Body strategy in two ways. First, the Tribunal's majority specifically noted the current law regarding Cabinet's decisions holds that the court should not investigate the motives of Cabinet:
Even in the light of human rights and Charter rights, and knowing that government may be motivated to take decisions or pass regulations by political, economic, social ox partisan considerations, the courts recognise and uphold the concept that there is no duty on Cabinet to publish its reasons for decisions; nor is the motive, even when known, relevant in determining whether a regulation is valid [...] There is no evidence from which the majority might infer that [the Ministers], took the decision, individually or collectively, or unduly swayed Cabinet to take the decision to delist SRS. Even if there were such evidence, based on the current law, it would not have been relevant in determining the validity of the regulation or Cabinet's action in taking the decision to discontinue funding SRS.
Because the Minister's or Cabinet's intentions cannot be known beyond their publicly stated reasons (reasons that they may not be compelled to publicly state), the financial reasons put forward by the Minister and Cabinet, have to be accepted at face value. Moreover, as the Tribunal clearly states, the intent has no bearing on the legality or validity of the regulation. When this is considered in light of the evolution of judicial discourse to a more traditional notion of liberal rights that rights provide protection from state action rather than as positive guarantees of state action (Young, 2007), the dismantling of social hierarchies and the redistribution of resources towards such historically marginalized groups is highly unlikely.
A second way Alberta's case can be seen as strategically proactive is that, in keeping with the Supreme Court of Canada's ruling in Irwin Toy Ltd. v. Quebec
Hogan, para. 73.
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(Attorney General), the majority in Hogan found that because Cabinet must
have the ability to make a reasonable assessment when allocating scarce resources
without undo judicial interference, the Tribunal's purpose in this regard was
solely to determine whether the Cabinet decision was a reasonable assessment.
The Tribunal was satisfied that the decision to discontinue funding SRS was a
reasonable allocation of scarce resources, as the majority believed that Cabinet
felt that SRS funding did not yield maximum benefits.94 For this reason, its
majority decision was more than reluctant to find that Ontario must fund surgery
for any except the three successful claimants. The Tribunal avoided calling the
validity of the legislation into question by presenting the situation as a very
narrow one in which these three exceptional claimants ought to be
accommodated, although not all transsexed people in Ontario. In reflecting on
Irwin Toy, the majority stated:
Individuals or groups will assert the need for benefits from the public purse, and the more or less vulnerable groups will too. Thus, the Supreme Court of Canada cautions that when reviewing the outcome of legislative choices, especially vis a-vis the protection of vulnerable groups; where the law is premised on complex social science evidence, or where the law allocates sparse resources, courts and tribunals "must be mindful of the legislature's representative function".95
It appears, then, that Alberta is banking on protection from human rights
claims based on its imperative to weigh the needs of different interest
93 Irwin Toy Ltd. v. Quebec (Attorney General) [1989] 1 SCR 927 at 989-990 [Irwin Toy]. In this case the Supreme Court of Canada found that the proper allocation of acutely limited resources requires the government to make difficult decisions regarding the balancing of competing interests, and how that balance is struck. This, the court found, is an imperative in which the government, as an elected, representative body, is in a better position to mediate these choices than the courts or tribunals. Hogan, para. 103. 95 Hogan, para. 104; Irwin Toy, page 93.
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groups when distributing finite resources. However, I am left to wonder,
what is the purpose of judicial review, especially vis-a-vis the protection
of vulnerable groups, if it must defer to legislative choices because they
are "representative"? How are historically vulnerable groups to
overcome disadvantage and vulnerability when they are often not
represented in the legislature if the courts refuse to overturn
discriminatory legislation?
In her partially dissenting opinion, Vice-Chair Mary Ross Hendriks cited
Ontario's lack of medical, policy, budgetary, or other non-discriminatory rationale
for its decision, as demonstrative of an arbitrary decision that was made so
recklessly as to constitute an abuse of power.96 In finding that the promulgation of
the regulation removing funding for SRS was a form of systemic discrimination,
Hendriks noted that Ontario had neither relied upon nor weighed any competing
qo
credible scientific evidence. She, then, also referred to Irwin Toy: "If the
legislature has made a reasonable assessment as to where the line is most properly
drawn, especially if that assessment involves weighing conflicting scientific
evidence and allocating scarce resources on this basis, it is not for the court to
second guess. That would only be to substitute one estimate for another." The
crux of her dissenting opinion was that Ontario did not make their decision based
upon credible scientific (medical) evidence; neither did Alberta base its decision
on medical evidence. In fact, Ontario actually had a medical committee to oversee
96 Hogcm, para. 260, Hendriks Vice-Chair, dissenting. Hogan, para. 263. Hogan, para. 379. 99 Hogan, para. 378; Irwin Toy, pages 989-990.
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their changes (although they did not make the recommendation that SRS be cut),
while Alberta did not. Moreover, as Hendriks points out, in Vriend, the Supreme
Court of Canada found: "although this Court has recognized that the Legislatures
ought to be accorded some leeway when making choices between competing
social concerns ... judicial deference is not without limits."100 What is perplexing
in Hogan is that the majority did not see clear to exercise such limitations on judicial deference as so unmistakably articulated both by Hendriks in her partial
dissent, and by the Supreme Court in Vriend.
The Tribunal found that the duty to accommodate was insufficiently
attended to because of the lack of a sufficient grandparent clause. Because the
processes of transition are multiple and continue over a number of years, the
majority concluded that the 35 day grace period specified in the grandparent
provision in the regulation was insufficient to accommodate the needs of the three
successful claimants.101 These three were singled out as exceptional, because they
had commenced treatment towards SRS prior to the decision by the government
to discontinue funding. In light of this, the Tribunal found that: "Their exceptional
circumstances give rise to the "need" to accommodate them and inform the
sufficiency of the accommodation."102 They did not, however, offer a remedy
commensurate with this finding to all transsexed people in the province in similar
positions, but only to the three successful named claimants. While this is in
keeping with the finding that these three were "exceptional," it also demonstrates
the deference of the Tribunal to Cabinet's decision-making. A deference that
100 Hogan, para. 380, Hendriks Vice-Chair, dissenting; Vriend, para. 126 [references omitted]. Hogan, para. 106. Hogan, para 106.
190 The (Un) Usual Body appears to extend beyond the reasonable limitations laid out by the Supreme
Court, and a deference that furthers the marginalization of trans individuals in
Ontario.
Alberta announced a phase-out program for people in an irreversible state between genders in April 2010; this program will continue to fund these
"exceptional" cases until 2015 - six years from the time of delisting.103
Interestingly, the time frame equals that specified in Hogan, and the conditions of the phase out appear to deal specifically with the minimum conditions outlined in the majority's decision in Hogan. The particular inclusion criteria as well as the six year window work against the financial justifications for the cut, while seeming to specifically address the findings in Hogan.
One very important impact of this phase out program is that it will delay any potential court action based on discrimination until after the phase out scheme is complete. That delay means that many people will be living within this legal limbo, caught between living their bodies with barriers to healthcare and documentation, and living in bodies that do not fit. Perhaps more important than
This phase out program was communicated via private correspondence. The information as presented here has been funneled through medical channels to individuals affected by the change. The first public suggestion of such a program (but with no details as to scope or requirements) came about during question period in the Legislature when Liepert suggested first that there were 26 people waiting for surgery, and then amended that to add 20 more (Audette, 2009b) The source of Liepert's numbers is unknown, and seems to bear little, if any, resemblance to actual numbers of transsexed Albertans seeking SRS. 104 The lone unsuccessful claimant in Hogan was unsuccessful because the majority found that he was not aware of Ontario's SRS program until after the funding had been cut, and that he had not begun treatment or transition prior to the delisting of SRS in 1998 (these are two of the criteria mentioned in the Alberta phase out). The six year time frame specified in Hogan was based on actual documented timeframes for completion of SRS under the Ontario format. Alberta's timeframe appears to be based solely on that, with no consideration of whether the timeframes for Albertans are similar or not. As the referral system in Alberta functions differently than the Ontario system for medical transition, it should not be assumed that the timeframe for completion of SRS in both provinces is the same.
191 The (Un) Usual Body the delay, however, is what Hogan clearly demonstrates: that even when trans
discrimination is understood as covered by one (or more) protected grounds, judicial remedy falls short of ensuring substantive equality. Gender identity and
gender expression were not required for the tribunal to understand trans
embodiments as protected in Hogan; yet that protection did not extend to removing the barriers to healthcare or documentation.
Social Effects of Legal Strategies
Human rights mechanisms and antidiscrimination legislation are
insufficient to ensure access to healthcare or government issued ID because there
is a gap between formal and substantive equality. As Dean Spade (2008, p. 770)
notes: "Even for those living in protected jurisdictions, lacking resources to obtain
legal assistance, or lacking "smoking gun" evidence of the discriminatory behaviour often precludes enforcement of these laws, and the damage of being
"outed" is irreversible." Formal equality offers a highly symbolic form of
recognition that functions to some degree as a condition of possibility of certain
systemic/ institutional discriminations.105 Formal equality acts as a kind of proof that government, courts, and people are not able to act in discriminatory ways because there is legal recourse for those who are wronged. Yet, such recourse
does little to actively prevent discrimination or to ensure substantive equality.
105 While ostensibly antidiscrimination legislation is designed to protect people from exactly these kind of discriminations, it is unable to do so for a number of reasons. This point has been made by many scholars in many contexts and is not limited to a trans context. In the trans context see (Spade, 2008; Spade, 2006; Currah & Minter, 2000). See generally: (Iyer, 1993-1994; Fudge, 1990; 1992; 1987; Glasbeek, 1989; Gotell, 2002).
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Protection becomes almost wholly symbolic when remedies do not address these differences. Formal equality can then be seen as a barrier to substantive equality, because this symbolic protection offers a legal hiding spot for diffuse forms of discrimination.
If trans embodiments were not offered some form of legal protection, then the Alberta government's move would be more problematic. Albertans would have to consider whether or not human rights protection ought to include trans individuals, and whether or not the government's removal of funding from a marginalized group was in fact a form of discrimination. Symbolic protection makes the discussion of discrimination murkier, and offers the protection of side stepping the discrimination question. It offers the government the opportunity to argue that the move was merely a difficult financial decision, not an ideological one. The proof that the government is not acting in a discriminatory manner is the symbolic equality, thus there is little reason to question the veracity of the financial argument. Without symbolic inclusion in antidiscrimination law, the government has to acknowledge the question of discrimination, as there is no legal hiding spot from which to suggest that equality exists.
The creation of a new discrete and insular minority category can, therefore, be recognized as harmful for (at least) three reasons: First, the grounds of sex or gender can and do include trans embodiments, as is clearly demonstrated in Hogan. Pushing for such an understanding of sex/ gender would help to disrupt the binary conception of sex/ gender that functions as the foundation of all forms of transphobia and trans discrimination (as well as misogyny); something that the
193 The (Un) Usual Body inclusion of a separate category would not do. Expanding sex/ gender categories in law to include other than male/ man and female/ woman would offer a step towards undermining the processes of transphobia embedded within law when transphobia is understood to mean the stigmatization of trans individuals as less real than non-trans individuals, as literally more constructed through the use of various somatic techniques (Mandlis, 2009). A further benefit of properly interpreting sex rather than finding another ground is that it does not cover simply those who are transitioning from one category to the other, but as demonstrated by the ruling in Hogan, also covers those who are neither definitively male or female as well. While gender identity or gender expression have been suggested as inclusive forms of protection that would extend to all trans embodiments (as well as to those people who do not identify as trans but are none-the-less discriminated against for their apparent gender identity or expression), there has been considerable debate regarding the interpretation of who is covered under the term gender identity and what that coverage means in the American jurisdictions in which it has been enacted, such as San Francisco, New York, and Michigan
(Spade, 2008).
A second reason to understand the strategy of fighting for gender identity as a separate ground as harmful is that while it may provide formal legal equality and symbolic recognition, it fails to guarantee substantive equality and may act as a barrier to substantive equality. In other words, while the Charter and provincial and federal human rights legislation offer legal remedy for legal wrong-doings, they do not actively prevent the daily discriminations faced by many marginalized
194 The (Un) Usual Body communities, including trans communities. While this may be the intent of antidiscrimination law, in practice it has little ability to prevent many forms of everyday discrimination.
Antidiscrimination law, according to Kimberle Crenshaw (1988, p. 1341), contains an inherent tension between "equality as process and equality as result."
Crenshaw terms these two distinct rhetorical visions: expansive, which looks to real consequences; and restrictive, which does not consider the results, but privileges the prevention of future occurrences of discrimination. The restrictive view, focussing on process, lends itself to a vision of discrimination in which acts of oppression are understood primarily as individual's actions against individuals, rather than as institutional actions against a particular group of people (Crenshaw,
1988). Systemic discrimination is difficult to prove under antidiscrimination law, because equality can refer to either the restrictive or the expansive vision. The granting of formal equality does not therefore equate to a commitment to end inequality. Under the restrictive view, antidiscrimination law constructs barriers to the eradication of systemic oppression because the law is then seen as facial neutral. As Crenshaw (1988, p. 1346) observes in relation to racial oppression of
Blacks in the United States: "to the extent that antidiscrimination law is believed to embrace colorblindness, equal opportunity rhetoric constitutes a formidable obstacle to efforts to alleviate conditions of white supremacy." What this means is that there is no singular and self-evident interpretation of rights in and of themselves. Thus, if the rhetoric of equality is embraced without the commitment to end inequality, then acts that are embedded within bureaucratic mechanisms or
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hidden by recourse to common-sense assumptions or myths are unlikely to be
viewed (from the dominant perspective) as acts of oppression that ought to be
remedied through antidiscrimination law. In this way antidiscrimination
legislation is ill-equipped to offer sufficient protection or remedy to groups
oppressed in systemic and diffuse ways. The complexity of systems of oppression
facing trans identified Canadians is unlikely to be significantly altered by
antidiscrimination law, and systemic transphobia and trans discrimination are
unlikely to be seen by courts as discrimination.
While having some form of legal redress might make some people feel
better about being discriminated against, it is doubtful that it will resolve the
complex problems of transphobia faced by many in trans communities, most
especially those with significantly more intersections of oppression (such as trans
people of colour, trans people living in poverty, trans people with criminal
convictions, trans people with addictions, and so on). Even without malicious
intent to discriminate, many people reproduce barriers for trans people based in
ignorance or discomfort. As Dean Spade (2008, p. 777) notes, even in jurisdictions where specific antidiscrimination legislation has passed, for example
in San Francisco and New York: "advocates report that these compliance
guidelines are generally under-enforced in practice, because people are not aware
of the rules and even city agencies fail to comply with them." Moreover, it is only those most privileged within the community that have access to legal remedy.
Those who are most marginalized often continue to experience discrimination
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regardless of antidiscrimination law, due to a lack of information, a lack of
resources, and a lack of access to legal remedy.
It is also important to consider that for gender identity or gender
expression to need to be enumerated into these codes there must not already be
sufficient coverage under other grounds. If other grounds can be interpreted to
include trans identified people, then there is no need to have gender identity or
gender expression as a separate ground of prohibited discrimination. The
inclusion of a separate category indicates that there is something about that
category that makes it distinct from other categories. Therefore to argue for its
necessity is to posit a lack of coverage and to argue for an understanding of the
current grounds as exclusionary of trans subjects. This places communities and
activists in the strange situation of reinforcing the limbo of trans subjects - if trans
embodiments are not included in sex, then trans becomes unintelligible in relation
to the legal understanding of sex. If sex is only male and female, and gender is
only man or woman and any other permutation or slippage or movement between these discrete categories is not covered, then trans is unintelligible. If trans can be
understood within sex/ gender, if movement or slippage or spaces between female
and male or woman and man are understandable and protected within the
categories of sex or gender then a separate category is not required. Gender
identity or gender expression would not be offering anything that is not already
encompassed by the categories of sex or gender.
Activism that is centred on raising awareness of the insufficiency of rigid binary categories of sex or gender need not rely on the strategy of a separate and
197 The (Un) Usual Body distinct category. This strategy was employed by homosexual communities, however because the processes of homophobia and transphobia are different, and the relationship of those processes to other characters of persons that are covered is also different, the homosexual template may not offer the best legal strategy for trans communities. In fact the positing of the separate and distinct category suggests that a revisiting of the current categories is unnecessary - they are doing fine, there just needs to be a new one. If the situation is already covered by a current category why would another category be needed? What purpose does it serve to add another category, and to say that someone has been discriminated against based on both categories? If they were speaking to decidedly different situations, yes; but then the necessity for it suggests that the situations are different.
What would distinguish the line between discrimination based on gender identity and discrimination based on sex? In what circumstances would someone have been discriminated against in only one of them? If a woman was discriminated against for being a mother, would that be a case of discrimination based on sex (as it is now) or based on gender identity? Surely, if she identifies as a woman then she is also being discriminated against based on her gender identity. If the same person identified as a man but was discriminated against as a woman would that be discrimination based on sex or gender identity? Perhaps, in this case, it would be merely a case of sex and not gender identity discrimination because it is not his identification as a man that caused the discrimination. But this functions to construct the category of sex as something pointing to (perhaps)
198 The (Un) Usual Body biology, or legal recognition of the person's registered sex, or maybe a common- sense understanding of someone's sex - in that the person who is able to be pregnant is being discriminated against as a woman, which actually functions to reproduce transphobia through the privileging of some biological or legal marker of sex. Hogan was clearly a departure from this kind of an either/or understanding of sex and in that, it appears to offer sex as a ground that can encompass all permutations of sex/gender without privileging one over another.
The addition of a separate category is also dangerous because essentially it requires trans communities to argue for their own exclusion from protection prior to an amendment that will include protection. This also means that having formal protection included in federal legislation is likely to lead to a situation in which trans individuals will be forced, within certain provincial jurisdictions, to engage in a Charter challenge in order to secure protections provincially. If trans identified people require the ground of gender identity in order to be formally covered under antidiscrimination legislation (a requirement that means other grounds are insufficient to protect them), then they will no longer be covered under provincial legislation that does not include it. Because the provincial human rights legislation in provinces such as Alberta only cover specified and not analogous grounds, it is likely that courts will find that trans individuals have not been discriminated against based on a protected ground (such as sex or gender), but instead under an unprotected ground - that of gender identity.107
106 This is what Private Members bill C-389 is trying to achieve. 107 This was the case prior to the inclusion of sexual orientation within legislation. Courts dismissed cases brought by gay men under grounds other than sexual orientation precisely because the discrimination occurred under the ground of sexual orientation - a ground that was in fact not
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A third reason that the strategy of having gender identity enumerated as a separate category is harmful is that the resources required to mount such campaigns - financial, as well as other - are massive. A lawyer is not required to file a human rights claim; but a Vriend strategy engaging in a Charter challenge of the Alberta Human Rights Act, would be very costly. Redirecting these resources towards other endeavours that act on the processes through which trans identified people are regularly disadvantaged, such as access to documentation, would be more beneficial to the communities. This redirection of resources is strategically important because the amount of resources needed to make changes is substantial, where the amount available to communities is not. Using the available resources efficiently and strategically is likely to offer the best outcomes. Using a considerable amount of resources to lobby for inclusion in legislation that already includes the communities is unlikely to directly benefit the majority of people within those communities. Who has access to legal recourse through such legislation is also a concern; one that is an even larger issue in light of the federal government's 2006 dismantling of the Court Challenges Program.
Conclusions
Returning to the situation in Alberta, it is unlikely that the inclusion of gender identity or gender expression in antidiscrimination legislation at any level would have prevented the government from removing the funding, or from constructing the phase-out program in response to Hogan. Alberta has clearly
covered. See e.g. Damien v Ontario Human Rights Commission (1976), 12 OR (2d) 262 (HCJ); A -G. Canada v Mossop, [1993] 1 SCR 554, aff g [1991] 1 FC 18, (1990), 71 DLR(4th) 661 (FCA), rev'g (1989), 10 CHRR D/6064 (Can. HR Trib).
200 The (Un) Usual Body considered the majority findings in Hogan, and appears confident that their financial arguments will succeed. The Ontario case is instructive in this regard, as
Ontario acceded to the claimants' protection based on disability. Ontario knew that they were acting in a discriminatory manner, against a minority group expressly covered under the provincial legislation; yet they believed that they were legally allowed to do so because of financial considerations. This position is supported by the ruling in Newfoundland (Treasury Board) v. Newfoundland and
1 OS
Labrador Assn. of Public and Private Employees (NAPE) where the Supreme
Court of Canada explicitly recognized that fiscal considerations provide a legitimate rationale for limiting Charter rights. When it comes to the weighing of what are seen as competing interests, those of the majority appear most likely to win out. Because financial arguments are essentially framed as impacting the greater good for the public at large, they are likely to be more compelling to the courts. While antidiscrimination legislation includes a duty to accommodate to the point of undue hardship, it is possible that Alberta's justification of a budgetary crisis that compels tough decisions about the allocation of healthcare resources could save their decision to delist in a discriminatory manner.
Can Alberta truly be seen to be suffering from financial hardship when the overall healthcare budget increased? Should this form of systemic discrimination be allowed to hide under the guise of allocation of resources? The specific inclusion of gender identity in antidiscrimination law does not address these
Newfoundland (Treasury Board) v. Newfoundland and Labrador Association of Public and Private Employees (NAPE) [2004] 3 S.C.R. 381.
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questions, and neither would its inclusion in law have prevented this situation in
Alberta.
What these healthcare situations demonstrate is that the rights template
engaged by the gay and lesbian lobby - that of adding a separate and distinct
category of protection - ought to be rejected by trans communities as a legal
strategy. Trans issues are distinct from gay and lesbian issues, and the processes
of transphobia are different than the processes of homophobia. This suggests that
the appropriate legal strategies to overcome discriminatory practices should also
be different. The discrete and insular minority approach may offer a symbolic
equality, but an equality that leaves intact the processes of discrimination. By taking advantage of existing categories, such as sex, and thus simultaneously
complicating and expanding them, trans activism is better positioned to strike at the processes of transphobia. While this strategy may not offer the seductive
appeal of the discrete and insular minority approach, it offers a significantly
greater potential for substantial social change.
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Phase 4: Citizenship and Everyday Life
Scholarship and activism on TS/TG people that seeks to offer an innovative and practically relevant contribution to the existing knowledge base needs to account for and intervene in the erasure of transsexual and transgendered people in the cultural and institutional world. To neglect how such erasure is organized on a micrological level perpetuates such obliteration, making the theory produced deeply complicit with the social world it set out to understand. (Namaste, 2000, p. 270)
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Chapter 6: Citizenship through Documentation
Access to government issued identity documentation (ID) is not readily available for all Canadians. Trans identified Canadians are one group that has a significant amount of difficulty accessing ID, and as discussed in Phase 3, the ramifications of the barriers to obtaining ID are significant and far reaching. For trans identified people, barriers to obtaining ID can function as a justification for other forms of exclusion and violence based in transphobia. "Common sense" assumptions about gender - that everyone identifies as the sex they were assigned at birth and that norms of masculinity and femininity naturally follow these birth assignments - are used to justify transphobia in the form of stigmatization, discrimination, and various forms of violence (Spade, 2008). What counts as common-sense, however, is contested and varies. Is someone male because of the presence of male primary sex characteristics or because of the absence of female ones? Common-sense might suggest that if someone has male genitalia, then they are a man, and similarly female genitalia make a woman. But as legal scholar Lori
Chambers (2007, p. 312) asks, "[wjould a male who lost his penis through an accident then become female or does the absolute requirement regarding a penis apply only to FTMs?" Common-sense can also suggest that it is the absence of certain characteristics that make someone male or female. A man in this understanding is male because of the absence of female characteristics, such as breasts and ovaries. But again, we must question: if a woman with breast cancer has a mastectomy and then a hysterectomy (to prevent the spread of the cancer to
IM A version of this chapter has been accepted for publication. Mandlis 2011. Journal of Information Ethics.
204 The (Un) Usual Body the uterus or ovaries), is she male? These ambiguities function as significant barriers to ID access for trans individuals; access barriers that are a result of systemic transphobia. Thinking about transphobia in this way, it is easy to see that policies that enact barriers to ID access for trans people are an excellent example of institutional transphobia.
Barriers to ID access for trans people in Canada occur in a myriad of ways, and an inter-provincial critical analysis of such policies and practices is something that is currently missing in Canadian transgender scholarly research.
As Dean Spade (2008, p. 749) notes in the American context: "the literature has thus far failed to look at the range of administrative gender reclassification policies and practices - including birth certificates, DMV policies, policies of sex- segregated facilities, and federal identity document policies - side by side, which has meant that the significance of the incoherence of these policies as a group has been obscured." This is not the project of this thesis or chapter; however, through an examination of the barriers to information regarding gender reclassification in relation to Canadian Passports, this chapter offers a different, initial step towards a similar goal. While the significance of these incoherencies is incredibly important, so too are the erasures of gender reclassification policies that occur through the lack of access to information regarding them, and the impact these erasures have on the interconnected government policies that affect trans people
(such as access to ID, placement in sex-segregated facilities, and access to healthcare). Moreover, these erasures perform a significantly more important function than simply an extension of institutional transphobia; they also function
205 The (Un) Usual Body to naturalize and reify "common sense" assumptions about gender that underpin both the policies and transphobia, as well as various other forms of misogyny.
Through a consideration of the relationship between legal discourses and citizenship discourses as they relate to the transsexed body and the passport, this chapter undermines the commonsensical assumptions that underpin social justice and human rights issues. By explicitly considering how a lack of access to information functions to produce certain bodies as possible and others as impossible, while simultaneously producing different forms of citizenship for these (im)possible bodies, government issued ID becomes the ground from which the horizon of institutional transphobia and the naturalization of gender difference becomes obvious. Exposing this institutionally imbedded transphobia is merely an initial step in the much larger project suggested by Spade, as the significance of the incoherencies between policies is also obscured by the barriers to access of the very information contained in these policies. Moving through a critical and rigorous examination of a single Passport Canada form, this chapter uses the formal and informal archive produced by this form, ethnographic stories, and the mandate and understanding expressed by Passport Canada to expose the inaccessibility of information regarding gender reclassification.
The Passport By exploring ways in which institutional denial of mutability allows for the erasure of subsequent issues and concerns, this chapter grounds previous
206 The (Un) Usual Body phases' theoretical abstractions, and offers new possibilities for changing these institutions. By examining concrete issues such as access to legal documentation, services, and other privileges of citizenship, as well as the lived effects of these issues, this phase offers an opportunity to understand how lived experience needs to be inflected by abstract theory. This chapter does this by considering the passport as a social justice/ human rights issue that both relates to the transsexed body, and is informed by the transsexed body. Within the larger context of this chapter, the passport application process as a case study is designed to make sense of issues, not as generalizable knowledge, but as pointing to an institutional/ structural/ or collective issue. Examining concrete issues such as access to legal
ID, access to services, and other privileges of citizenship that most people take for granted offers one way in which to expose the institutional transphobia of ID issuing practices, as well as an opportunity to expose their function in naturalizing and reifying the "common sense" assumptions of gender that underpin them.
Studying the passport also affords a means of archival practice, through both a governmental archive and through other kinds of archive practices. As
Antoinette Burton (2005, p. 3) explains: "archive - that is, traces of the past collected either intentionally or haphazardly as "evidence" - are by no means limited to official spaces or state repositories"; to this end, I include in my discussion of the official archival record - that of the state provided and approved forms - ethnographic stories as historical 'evidence' in the form of living, oral archives, because as Burton (2005, p. 20) points out "[sjtories - in whatever narrative form - embed as many secrets and distortions as archives themselves;
207 The (Un) Usual Body their telling encodes selective disclosures, half truths, and partial pasts no more or less than do histories "proper"." Using ethnographic stories also allows me to reflect my own belief in Burton's (2005, pp. 7-8) argument that her book:
is motivated by our conviction that history is not merely a project of fact retrieval (the kind of empiricism reflected in the CSI paradigm as well as in public debates about plagiarism or the Truth and Reconciliation Commission) but also a set of complex processes of selection, interpretation, and even creative invention - processes set in motion by, among other things, one's personal encounter with the archive, the history of the archive itself, and the pressure of the contemporary moment on one's reading of what is to be found there.
In this way, I am using the term archive rather loosely, to include not only records held in a collection facility, such as the forms and documents used and collected by the Passport Office, but to also include other forms of contact between people, particularly those forms of institutional contact in which the government official stands in as an agent of a larger cohesive unit. Borrowing from Craig Robertson (2005), I am in this way deliberately anthropomorphizing the "Passport Office" and the "Canadian Government" in order to emphasize that the production of these different kinds of personhoods or citizenships through these particular forms of institutional contact are actively carried out by various officials or departments, not under the guise of an abstract concept, but in the name of a coherent entity that functions as such. As Sara Ahmed (2004, p. 14) notes:
An archive is an effect of multiple forms of contact, including institutional forms of contact (with friends, families, others). Some forms of contact are presented and authorised through writing (and listed in the references),
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whilst other forms of contact will be missing, will be erased, even though they leave their trace.
It is these different forms of contact within the context of citizenship as a means
of understanding everyday experience as a form of embodied knowledge that this
phase elucidates. Examining these forms of contact, both in their presence and in
their erasure, offers an important context in which institutional transphobia can be
considered.
PPT 152 (03-09)
The difficulty and confusion of navigating government bureaucracy offers
a myriad of examples of the kinds of contacts that are missing, yet still leave a
trace. One such example is that of the forms required to obtain a Canadian
passport and the ease or difficulty with which the forms (and the passport) can be
accessed. The majority of forms commonly used to apply for a passport are
readily available online, at retail photo outlets, or at unstaffed Passport Canada
counters. These forms and their ease of use and access produce authorised forms
of contact. These are, to paraphrase Sara Ahmed, forms of contact that are
authorised through writing and would be listed in the references; they are also readily presented and understood as the most appropriate form of contact in this particular institution. The Canadian Passport Office has other, less readily presented and therefore less appropriate forms of contact, including the form, PPT
152 (03-09), Request for a Canadian Passport Indicating a Sex Other Than the
Sex Shown on My Documentary Evidence of Citizenship that offers an excellent
209 The (Un) Usual Body example of these different types of contact and the productions and erasures that subtend from them.
By examining this form in depth from a number of different angles, I show ways in which this form and the types of contacts that come with it function as a kind of archive that allow for a distinctive perspective on state authorised violence against trans-identified people. The title of the form allows for an initial point of critique, while the body of the form, and the implications that follow from it, offer significantly more concern. Furthermore, the ways in which this form may be accessed, as well as the types of contact that occur through the form's use also require consideration and critique, because they too function to naturalize and reify institutional transphobia and the assumptions about gender required to support it. By exploring the role of this form in constituting different kinds of citizenships, and through them different kinds of personhoods, this chapter exposes the institutional transphobia imbedded within them, and takes up transgender studies quite literally, furthering the development of a critical trans theory. As Susan Stryker (2006, p. 3) argues: ""Ultimately, it is not just transgender phenomena per se that are of interest [in transgender studies], but rather the manner in which these phenomena reveal the operations of systems and institutions that simultaneously produce various possibilities of viable personhood, and eliminate others."
The issuance or refusal of a passport constructs forms of citizenships because the passport is "the only reliable and universally accepted travel and identification document available to Canadians for the purpose of international
210 The (Un) Usual Body travel" (Passport Canada, 2009b). In this instance, a form of citizenship termed
"Canadian" is constructed by the issuance of a passport that enables a person to travel abroad as "Canadian". By being the only acceptable document allowing such travel, a person denied this passport is not only unable to travel abroad, but, more importantly, is also denied a form of citizenship. The right to hold a passport is merely one aspect of modern citizenship (Brodie, 2002). Because citizenship encompasses a "set of practices (juridical, political, economic and cultural) which define a person as a competent member of society" (Turner B., 1993, p. 2), the exclusion of trans identified Canadians from such practices functions as a mark of incompetence. Moreover, citizenship denotes the status of an individual in social life. As Anna Yeatman (2007, p. 106) writes:
Since human conduct occurs in all spheres of social life, citizenship offers a specification of what it is to be a person in the company of other persons whether we are talking about the settings of family life, or those of friendship, employment, voluntary associations, or the official conduct of government.
In understanding citizenship this way, the issuance or refusal of a passport, and the barriers to information regarding the passport can be seen as constructing different kinds of citizenships. Ann-Marie Field (2007, p. 248) makes this argument clearly:
where formal-legal citizenship is understood to mean that everyone who is a citizen can expect to receive the same treatment from the state and is entitled to the same rights (for example, application of laws), benefits (for example, socio economic benefits of the welfare state), and responsibilities (for example, political participation such as voting), groups that are considered Other on the basis of gender, sexual or gender identity, race, ethnicity, etcetera, do not enjoy substantive citizenship.
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It is not that the person denied the passport is removed from citizenship, it is that
their citizenship, the conditions under which they are seen and understood "to be a
person in the company of other persons," is substantively different than the
conditions under which some other person issued a passport without complication
is seen to be a person. This difference must properly be understood not merely as
a distinction, but as a stratified particularity. In essence a lack of substantive
citizenship constructs "second-class" citizens. Understanding citizenship as a
regime of practices in which the state constructs a matrix of laws, policies, and
practices that regulate who may become a citizen and what rights and benefits
accompany that citizenship (Field, 2007; Jenson & Phillips, 1996; Dean, 1999)
allows a distinction between formal-legal citizenship and substantive citizenship
to appear.
Moreover, according to Passport Canada "[ijssued to Canadian citizens
only, a Canadian passport reflects the identity of the applicant as determined by
documentary evidence of citizenship and documents to support identity" (Passport
Canada, 2009a). The citizen that is denied a passport can then be understood to
have somehow failed the determination of their identity; a failure that through
Nikolas Rose's (2000) concept of responsiblization can be understood as their
own failure. As a key concept in Nikolas Rose's work, '"responsibilization"
speaks to the process whereby the imperative to improve oneself combines with the blaming of the person seen not to have appropriately fulfilled this ethical
obligation. Improving oneself in this context requires the transsexed individual to take whatever steps are necessary to ensure that their identity can be appropriately
212 The (Un) Usual Body verified through recourse to identity documents; failure to do so is the responsibilized citizen's own failure. Craig Robertson (2005, p. 80) explains this more clearly:
The passport "verifies" the true identity of the individual in part by producing the truth of that identity through the valorization of particular technologies, procedures, and authorities both to establish the bearer as a citizen and to link the bearer to the document. The facts, statements, and citations that "verify" the passport as a legitimate and authoritative identification document are produced as true through claims to bureaucratic objectivity and "mechanical objectivity".
Because the veracity of the document cannot be questioned due to its imbeddedness within the governmental system, the failure to sufficiently provide a "true" verifiable identity falls on the citizen. The result of such a failure is to produce a different kind of citizen. The person denied a passport is not removed from citizenship, neither can they be understood as the constitutive outside of a verifiable citizenship, rather they are produced as some other form of citizen - one that is simultaneously unacknowledged. By distinguishing between those citizens who benefit fully from citizenship and those who, despite their formal inclusion in citizenship, do not benefit fully, the construction of multiple levels of citizenship becomes visible (Field, 2007). In the case of the transsexed person, this failure to provide "true" verifiable evidence of identity functions to justify the transphobic idea that the transsexed body is disingenuous, or deceptive. The refusal of the passport is further justified by this spectre of fraud. In addition, this conception of the transsexed body as fraudulent functions to reify assumptions about the naturalness of gender.
213 The (Un) Usual Body
The system's refusal to acknowledge some forms of personhood as viable or acceptable produces the effect of erasing that personhood; yet, as Sara Ahmed
(2004) reminds us, this contact leaves a trace. The trace, in this instance, can be found in the very passport form under consideration. While the person's identity has 'failed' to be supported in an acceptable way, other supporting evidence can be used to erase the failure. In this way Craig Robertson's (2005, p. 80) labelling of the passport a '"technology of verification' to make explicit this specific relationship between identity and the centralizing practices inherent in the issuance of identity documents" can be seen to function both in the 'failure' and in the subsequent erasure. The use of the form, and the subsequently required supporting documentation, allows the 'failure' to be erased thereby allowing the issuance of a passport under different circumstances and with different conditions than other ('normal') Canadian passports. That passports can be issued under different circumstances and with different conditions, suggests that there are different ways of being Canadian. Moreover, these different ways of being
Canadian equate to different levels of citizenships because the privileges and protections offered to one group - the very substance of citizenships - are not offered to the other.
The Title
The requirement of evidence of citizenship (as evidenced in the title of the form) seems to be an obvious and necessary requirement for obtaining a passport; yet this requirement fails to take into account the difficulty many transsexed
214 The (Un) Usual Body people encounter in trying to obtain this evidence (Namaste, 2000). These difficulties occur both through the systematic suppression of information, as discussed later in this chapter, as well as through other forms of bureaucratic service failure, as demonstrated in the ethnographic story below.
Ethnographic Story 1
Changing the name on my birth certificate seemed straightforward enough. I had a legal change of name document. I had the previous original copy of my birth certificate. I had the application form and the cheque for the fee. I was surprised when it was sent back to me (sans cheque - which, of course, had been cashed) because the name on the application form and the name on record didn't match. Of course they didn't! That is why the forms (and the cheque) to alter the birth record were sent. This was eventually resolved, and my birth record was amended with my new name. All it took was a substantial amount of money, many, many government forms, a visit to the police for fingerprinting, numerous long distance phone calls, and six months.
When it came to having my birth record amended again, I was apprehensive. Because it had been such a trial to amend my name, I expected that it might be worse to amend the sex on record. I had, however, been supplied with a number
215 The (Un) Usual Body of affidavits printed on the correct Government letterhead and signed by different physicians. This bolstered my feelings that this encounter with Vital Statistics would be easier. I called Vital Statistics and asked what was required; I had a Medical Certificate of Transsexual Surgery (VSA 510), a Supporting Medical Certificate of Transsexual Surgery (VSA 511), an Application for Birth Certificate (VSA 430b), and the original (amended) birth certificate. I was told that I was missing a form, Application for Change of Sex Designation on Birth Registration (VSA 509). This form was, of course, not available electronically or via fax. It had to be mailed in hard copy. I waited for it to arrive. When I had filled it out as well, I called the government back. This time it appeared that I had all of the necessary documentation. Now I just needed to pay twice the standard fee, and I was set. I sent the documents and the cheque for twice the fee and waited. The cheque cleared, but the certificate didn't come. In its place I receive all of my documents back (without the cheque of course) and a letter asking for a further Statutory Declaration (VSA 412), as well as photocopies of the doctors' licenses to practice medicine. I called the surgeon's office to ask for the photocopies. The office manager was shocked by the request; in years of working for the only surgeons in the country who do sex reassignment surgery she had never been asked for the doctors' licenses. I called
216 The (Un) Usual Body
Vital Statistics and asked why they required the licenses when there were only two doctors in the country who did this surgery (and the two affidavits were signed by them) and was told that each record required its own copies. This didn't make a lot of sense to me when the office manager had never received a request for this before. Ignoring the inconsistencies between the two stories, I asked if I could fax the documents, in order to speed up the process. I was told that the government office did not accept faxes; yes there was a fax number, but anything faxed to the office could not be put into a file, the documents would have to be mailed. Figuring that I was already considered a problem client so I had nothing to lose I complained that the cheque had already been cashed, although the work had not yet been done. I was told that it had to be cashed in order to open the file. The fee (in this case double the standard fee) was apparently required in order to open the file, not to actually change the registration or send the amended birth certificate. When the photocopies arrived, I sent them, along with all of the other documentation back to Vital Statistics. I also included a note that they should already have on file the money that I had sent and when the cheque had cleared. I waited. The certificate did not arrive. I received a phone call from the Regional Manager of Vital Statistics telling me that the latest forms were insufficient
217 The (Un) Usual Body because they were now out of date. Moreover, the legislation had changed, and now the Supporting Medical Certificate was unacceptable because the doctor that had signed it did not live in the same province I did. I would have to supply them with another VS A 511 Supporting Medical Certificate of Trans-Sexual Surgery signed by a doctor that was licensed to practice in the province in which I resided. I would also have to supply a photocopy of that doctor's license to practice medicine. The form could not be faxed; it had to be sent in hard copy. I did eventually receive the new amended birth certificate. Its arrival was heralded by a letter informing me that my birth record had been amended and ordering me to return any previously issued certificates to the office for destruction. Furthermore, the letter warned that "failure to comply with an order to return a certificate constitutes an offence under section 49(1) of the Act and may result in a fine of not more than $50,000"; a warning that seemed overly aggressive and threatening in tone considering that surrendering the certificate (and all issued copies) was a requirement of getting the registration amended in the first place. The much sought after certificate took only eleven months from the time I initiated the paperwork until its arrival, suggesting that the changing of a birth record is a bit more time-consuming than the actual process of giving birth.
218 The (Un) Usual Body
As the ethnographic story shows, accessing evidence of citizenship is not
always a simple task. The time, money, and patience required to access a birth
certificate can be beyond the ability of some trans-identified people, not because they are lacking in any substantive way, but because the transphobia of the government and its officers can produce sometimes insurmountable obstacles.
Whether this transphobia is a case of malice, wilful ignorance, or merely bureaucratic incompetence is somewhat irrelevant when considering its overall
effects. What is important to consider is that this transphobia equates to a denial of the right to identity for transsexed persons, a denial that then triggers the denial of other public rights.
Gender reclassification is possible on all Canadian birth certificates; in
fact most provinces include gender reclassification in their Vital Statistics Act.
However, access to this information is very difficult to obtain. In Alberta, for example, gender reclassification is listed within the Vital Statistics Act (RSA
2000, c. V-4, s. 22) under section 22 Registration of change of sex;111 however,
Canadian Encyclopedic Digest, 3r ed., (Toronto: Thomson Reuters, 2010) "Vital Statistics", VIII §141-146. (WestlawCanada, LawSource). Vital Statistics Act, R.S.N.S. 1989, c. 494, s. 25. Vital Statistics Act, S.N.B. 1979, c. V-3, s. 34. Vital Statistics Act, S.N. 2009, c. V-6.01, s. 26. Vital Statistics Act, S.P.E.I. 1996, c. 48, s. 12.
Vital Statistics Act (R.S.A. 2000, c. V-4, s. 22) section 22 Registration of change of sex reads: 22(1) When a person has had the person's anatomical sex structure changed to a sex other than that which appears on the person's birth certificate, the Director, on production to the Director of (a) 2 affidavits of 2 physicians, each affidavit deposing that the anatomical sex of the person has changed, and (b) evidence satisfactory to the Director as to the identity of the person, shall do either of the things referred to in subsection (2).
22(2) If subsection (1) applies, the Director shall
219 The (Un) Usual Body this information is not readily accessible to the majority of Albertans. Brochures on amending Vital Statistics documents (such as birth certificates) include a section entitled: "What kind of'amendments' can be made to a birth registration?" (Government of Alberta, 2010, p. 5). Included in the answer to this question are amendments to given or last names; date of birth; place of birth; parents' names, places or dates of birth; and adding of father's information. There is also no reference to amendments for change of sex on the Service Alberta website (Government of Alberta, 2010). While there is a caveat within the booklet that tells people that they should check with a registry agent if the amendment they wish to make is not covered in the pamphlet (Government of Alberta, 2010, p. 2), the lack of specific mention of gender reclassification functions to erase it as a potential amendment. Moreover, the reference to request specific information from a registry agent presupposes that the agent is both able and willing to provide the information. When combined with institutional transphobia, these presuppositions function as further barriers to information, and ultimately, to accessing ID, as demonstrated in the next ethnographic story.
(a) If the sex of the person is registered in Alberta, cause a notation of the change to be made on the registration of it, and (b) If the sex of the person is registered outside Alberta, transmit to the officer in charge of the registration of births and marriages in the jurisdiction in which the person is registered, a copy of the proof of the change of sex produced to the Director.
22(3) Every birth or marriage certificate issued after the making of a notation under this section shall be issued as if the registration had been made with the sex as changed.
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Access to Information Returning to the Passport form, the difficulty in accessing the Passport
Canada PPT 152 (03-09) presents another obstacle to the transsexed person, and functions in a similar way to the barriers to access to information for Albertans seeking gender reclassification on their birth certificates. The form is not listed within any Passport Canada information guides. The form cannot be obtained with other required application documents at an unstaffed Passport Canada counter or at retail photo outlets; nor can it be obtained online. The form has to be specifically requested from a Passport Canada officer who knows that the form exists.
Ethnographic Story 2
I had been told by another transman that it was possible to get a passport that read male without having my birth certificate altered. Moreover, a second transguy said he got his without having had surgery. I phoned Passport Canada and asked about getting a passport for myself that read male when my birth certificate read female. I was referred to a second officer and put on hold. I explained the situation, again, to her and she excused herself to ask for assistance from someone else. I was put on hold again. When she returned, the second officer told me a form existed, and that it would be mailed to me. She asked for my name and mailing information to send the form to me. I asked whether there were any other supporting documents needed in
221 The (Un) Usual Body relation to this form. She said no. I also asked whether this changed the cost or length of issuance of the passport. She said that I required no other supporting documents, and that all Canadian passports were issued for 5 years under the same fee structure. The form never arrived.
I went to my Regional Passport Office to see if I could get the form there. The first worker stopped me before I even entered the office. There was a long line of people waiting just ahead of her. She asked me what I wanted. When I replied that I needed to get a particular form, she refused to let me pass without explaining what form. I explained that while my bearded face and deep voice presented me as male, my birth certificate listed my sex as female. I responded to her puzzled look by explaining that I wanted my passport to list my sex as male. When I explained the nature of the form to her, in front of the increasingly larger group of people waiting behind me to get in, she seemed confused, and told me to wait in the line up. When I reached the front of the line, the officer that called me up to the desk looked mystified when I told him what form I wanted. He referred me to another officer. I explained the situation to her and she, with a bemused expression, referred me to a fourth officer. The fourth officer told me to wait and left the counter. Eventually, she returned and gave me the form. When I asked whether there were any supporting documents
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required in addition to those normally required with an application, I was told that there were. In order to use this form, I would have to supply an affidavit from a psychiatrist diagnosing me with Gender Identity Disorder. I would also have to supply a letter from a surgeon stating that I had already undergone sex reassignment surgery, or that I was scheduled to undergo this surgery in the next twelve months. Furthermore, I was informed that my passport would only be valid for one year, unless I submitted an additional fee and an affidavit attesting to my having had sex reassignment surgery prior to the one year expiry date. I said that I was confused, this was not what I had been told when I called Passport Canada on the phone. The officer responded that either I or the officer on the phone must have gotten it wrong.
The freedom of information and protection of citizens' privacy is an issue that has produced a myriad of legislation, yet transsexed people are required to
'out' themselves repeatedly in crowded government offices. The privacy accorded to other citizens' bodies and genitals are stripped from transsexed people who require access to this form. Moreover, the indignity of being sent from officer to officer, having to repeat a request over and over, not to mention the inappropriate responses some of the officers have to the request, suggests that the freedom to access information and the protection of privacy are two further examples of ways that transsexed people's citizenship is constructed differently than nontranssexed
223 The (Un) Usual Body people's. Transsexed people's privacy is not respected or protected when this form is required; furthermore, access to information, which both the existence of the form and the form itself can be considered, is also denied by the way in which the form is handled. The genitals of other citizens are not examined through medical records prior to their being issued passports; neither are they required to explain their medical histories to passport officers. The PPT 152 (03-09) form forces the transsexed person's genitals and medical history into the public office for the scrutiny of the passport officer. This scrutiny provides not only a further barrier to access to ID, it also poses a barrier to access to information. For the person unwilling to undergo such scrutiny, the information itself becomes unavailable; whether they choose to access the ID or not becomes moot when the information on how to access the ID is unavailable.
The Body of the Form
Turning to the text on the form itself, the form can be seen to be not only a means by which the conduct of conduct is kept under state control (Rose N.,
2000), but a means of preventing transsexed (or trans) individuals from obtaining a passport through both the suggestion that their sex is problematic, and the absolution of the Canadian government of any responsibilities towards this passport holder: I have been advised by the Passport Office that I may encounter difficulties with the officials of other countries if my passport shows the sex selected above. It is hereby understood, and agreed, that the Passport Office, Canada or any representative of the Canadian government will not
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be liable for any damages caused or alleged to be caused as a result of the indication of that sex in my passport. I agree not to make any claims or demands against the Passport Office, Canada or any representative of the Canadian government in respect of any potential damages. (Canada, PPT 152 (03-09))
The suggestion that the person may encounter difficulties is premised on the person not actually being understood as the sex indicated on the passport. This is problematic for a number of reasons, not least of which is that the required supporting documentation precludes anyone not physically transitioning from using the form. This means that only someone who is in the process of a medically assisted physical transition may use this form to access a passport.
While a person who has not entered into physical transition may be understood as not the sex listed on the passport, those who are medically transitioning are more likely to "encounter difficulties" if their passport states them to be the opposite of the expected sex. Put more simply, a transman with a beard is more likely to
'encounter difficulties' if his passport states that he is female than if it lists him as male; yet this form requires him to acknowledge and accept responsibility for any difficulties he encounters due to his sex being indicated as male.
Moreover, this form is not acceptable on its own, but must be accompanied by affidavits from a psychiatrist noting the person's diagnosis with gender identity disorder, and a surgeon stating that the person has undergone or will undergo sex reassignment surgery in the next 12 months. Information regarding
1,2 There have been many important critiques of the requirement for medical transition (and especially surgery) in order to access ID. While this is an important critique, it is beyond the scope of this particular chapter. For more information on this critique see (Spade, 2003; Spade, 2008; Gehi & Arkles, 2007).
225 The (Un) Usual Body the supporting documents is, of course, only accessible through talking with an agent that knows of the form and its use. This means that even accessing the form itself is insufficient for transsexed individuals to make decisions regarding their use of the form; they must also have access to the information regarding the supporting documentation.
Returning to the consideration of what gender designation is more likely to cause difficulties for travelling transsexed individuals, it is important to consider how this understanding of when difficulties will arise functions to reinforce
"common sense" assumptions about gender. The idea that a transman with a beard is likely to encounter difficulties when travelling as a man is predicated on the idea that he could not possibly be understood as one. Similarly, a transwoman is assumed to obviously be a man-in-a-dress and therefore she will encounter problems with officials who believe that she is a deviant man. What this demonstrates is a lack of understanding of medical transition, as well as a reliance on "common sense" assumptions about the naturalness of gender. Because primary sex characteristics such as penis and vulva are usually hidden beneath clothing, secondary characteristics such as breasts and facial hair tend to be used to determine the sex of an individual. In this way, a transman with a beard and a transwoman with breasts are less likely to be understood as the sex they were assigned at birth, regardless of the rest of their presentation. That a transwoman is understood as always already a man-in-a-dress when policies supposedly designed to include her are written functions to shore up the notion that men and women are inherently different and that it is not possible for them to be otherwise.
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This is the foundation of "common sense" assumptions about gender, and it used to marginalize women as well as to justify the exclusion of trans people from full citizenship. In this way, these policies actually function to exclude more than they include.
Because sex reassignment surgery will not be done until the person has been on hormones for a minimum of one year, and because the wait times for surgery are often two or three times that, any person eligible to use the form will likely have significant physical changes prior to the issuance of a passport (CPATH,
2008; WPATH, 2009). These requirements preclude the non-transitioning trans person from using this form, thus the ensuing problems or difficulties that the government is warning the person about are ones that the Canadian Government
(or minimally the Passport Office) expects will befall the transitioning (or transitioned) person: the person whose sex has (ostensibly) been changed.
Pre-operative/ post-operative distinctions have been critiqued by many scholars (Sharpe, 2002; Butler, 2004; Prosser, 1998; Namaste, 2000) as a ridiculous distinction that holds no merit. What this distinction does is allow for the denial of the body designated pre-operative as changed. As others have pointed out, the pre-operative body has often undergone significant somatic change through hormone administration, as well as surgical interventions such as hysterectomy or orchidectomy, bilateral mastectomy with complex chest reconstruction or bilateral breast augmentation (Cromwell, 1999; Devor, 1997;
Green, 2004; Prosser, 1998; Namaste, 2000; Sharpe, 2002). These "pre-operative" bodies, then are not only already operative in many instances, but are certainly
227 The (Un) Usual Body already significantly somatically changed. This change is denied (and disavowed) by the use of the pre and post designators. The post-operative body can then be seen as something significantly different from the pre-operative or non-operative body; something that is less real than the non-operative body, something that is also somewhat less problematic than the pre-operative body. This coding of less problematic comes about because the pre-operative body, when viewed as not yet changed, offers the potential of saving. By being designated as currently unchanged, there is the possibility of the future potential mutability being somehow diverted; the pre-operative body can be diverted to the mobile nontrans body. If the pre-operative body is understood as already changed, then this potential is lost; the body that has already changed cannot become the immutable body that is desired by the disavowal. The mutable body, the stabile, demonstrates the unnatural movement - the arrested or potential movement - that makes visible the disavowal. Moreover, as Meyerowitz (2002, p. 141) argues:
But surgery was also symbolic. It was the coup de grace that ended a 'sham existence' or a 'life of deceit.' Surgery was not the only part or even the most important part of the quest for authentic self-expression. For some, however, it became a defining event.
This symbolic divide between the pre- and post- body becomes a matter of law through the bestowal of authenticity to the post- body offered by government recognition (the changing of the birth certificate) as well as a defining moment for the disenfranchised. That historically the distinction has been embraced by transsexed people further shores up the divide.
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The requirement for imminent or past genital surgery in order to access a passport in the chosen sex further suggests that insofar as the government appears to accept the mutability of sex (in that there is a form to amend the person's passport), there is still a denial of that mutability, as evidenced by the requirement that the transsexed person solely be held legally accountable for any and all difficulties arising from their stated sex. This is an example of the classic fetishistic disavowal (Mannoni, 2003); the Canadian Government knows that sex is mutable (as evidenced by the existence of the form), yet it never-the-less believes that it is not. The Canadian Government then behaves in accordance with its belief by denying the mutability of sex by making the application process onerous for the transsexed person. In this way the form that is ostensibly designed to include transsexed people in the passport process - and through the passport in citizenship - actually functions to exclude them.
(Trans)Sex, (Trans)Gender, and the Residual
The disavowal of sex as mutable is a foundational concern when considering equality and human rights. In order to make better sense of how the disavowal functions, it is important to consider more thoroughly how the transsexed body comes to be understood as disingenuous and fraudulent, and how that deception is used to justify the disavowal of the transsexed person's sex.
Thinking through the case of the transsexed man: there is a person who was considered female, who is a man, and at some point may have been considered a
229 The (Un) Usual Body female man, who is now recognized as male, and as such is a male man. Yet there is, as trans scholar Aaron Devor (1997, p. 52) notes, a residual: "Transsexualism is understood as a kind of ex role wherein persons' past genders and sexes remain as a kind of residual which forever colours newly acquiied statuses".113 There is an excess that remains, in that he is always a transsexed man, a man who was once thought to be a female man (and probably a woman). In the case of the passport office, this residual becomes even more important and obvious, as transsexed persons are required to 'out' themselves through the identity verification process.
What is this residual? It is not gender. The transsexed man is (usually) understood as a man. It also cannot be sex, not in the way in which sex can be considered as physical or biological - through the process of somatic transition the female-to-male transsexed body can no longer be said to be biologically female; the blood profile becomes male, the hormonal profile becomes male, the secondary sex characteristics become male, and the anatomy becomes more recognizably male. And this call to the physical or biological is important because, while sex might mean something else, it is this call to biology that is often invoked as the defining arbiter of sex/gender.
What is this something else that remains? What is the 'female-ness' or
'not-male-ness', this residual excess? Some might argue that what remains is an
113 While Aaron Devor has named this a residual, the phenomenon of having some aspect of the original assignment remain in the body (potentially in a physical way) is not merely an assertion of Devor's The citation to Devor is acknowledging his discussion of this phenomenon, but the phenomenon itself is widely discussed in community stones, as well as in published works that are biographical and/or scholarly works Moreover, the return of the oi igmal sexing occurs in too many contexts to ignore the importance of this remainder.
230 The (Un) Usual Body underlying material truth, a deception; as Susan Stryker (2006, p. 9) writes:
"Transgender people who problematize the assumed correlation of a particular biological sex with a particular social gender are often considered to make false representations of an underlying material truth, through the willful distortion of surface appearance". Moreover, as Jamison Green (2004, p. 187) notes: "As soon as a transsexual man reveals his trans status, he is examined for vestiges of
'woman' that may then be used to invalidate his maleness". This 'vestige' of woman appears very large indeed; the residual of the f appears, in some ways, to supersede the m. What is this residual? Is it merely a transphobic fear; a fear that the possibility of moving from f to m or m to f calls into question what f or m mean; calls them into question in such a way as to show the instability and the lack of boundary between them, thus suggesting that the signifying field cannot actually be fixed by sex as the master signifier?
Possibly, the residual is a disavowal of sex as mutable in that "I know his sex is male but nevertheless I believe him to be female". But is understanding this as a disavowal sufficient to encompass the ubiquity with which such understandings occur, and ought the disavowal to be understood as related to the mutability, or to something else? What is this remaining excess, this seemingly immutable part of the seemingly mutable body? What is sex? What is gender?
And what is this excess that is neither sex nor gender but is apparently the master signifier that overwrites both?
231 The (Un) Usual Body
What is the Master?
The incoherence of gender/sex comes about through a privileging of sex as the master signifier. It is this placing of the point de capiton, and the resulting quilting into a unified field, that results in the understanding of incoherence or coherence. As Zizek (1989, p. 88) explains: In this way, every element of a given ideological field is part of a series of equivalences: its metaphorical surplus, through which it is connected with all other elements, determines retroactively its very identity.. .But this enchainment is possible only on condition that a certain signifier - the Lacanian 'One' - 'quilts' the whole field and, by embodying it, effectuates its identity.
This "certain signifier" has the power, then, to produce or negate the identity of the whole field. If 'sex' stands as the nodal point, then a gender identification that does not appropriately follow is negated by the field. The fixing of this point then becomes the hinge on which the identity is determined to be true (produced by this 'quilting') or false (denied by the nodal point and thus, "retroactively" determined to be fixed differently). The 'false' identity is then haunted by a residual of the 'true' identity, insofar as the retroactively determined identity is seen to be fixed by the residual.
It is in this way that sex as an immutable binary category assigned at birth comes to stand as the 'pure' signifier over any other gendered signifiers. With the status of a 'pure' signifier, sex guarantees the unity of our experienced historical reality where nothing else can. "It is not the real object which guarantees as the point of reference the unity and identity of a certain ideological experience - on the contrary, it is the reference to a 'pure' signifier which gives unity and identity
232 The (Un) Usual Body to our experience of historical reality itself (Zizek S., 1989, p. 97). When this unity is found lacking, as in the case of the transsexed or transgendered man, unity needs to enforced. Unity appears to be restored through the function of the residual excess.
Transference
The restoration of unity occurs through the constitution of unity imposed by the residual. In this way the residual functions under the general rules of transference in (at least) two ways: first, the residual "consists of the illusion that
[its] meaning (which was retroactively fixed by the intervention of the master- signifier [natally assigned sex]) was present in it from the very beginning as its immanent essence" (Zizek S. , 1989, p. 102); and second, "often, the invention of some new content can only occur in the illusory form of returning to the past original truth" (Zizek S. , 2006, p. 29). In much the same way that a return to ancient and forgotten ethnic roots constitutes and invents the tradition that is
'returned to', one might argue that the residual is a return to the natally assigned sex that then invents the person as always having been that assignment. Because we are dealing with an effect of retroversion "the subject becomes at every stage
'what it always already was': a retroactive effect that is experienced as something which was already there from the beginning" (Zizek S. , 1989, p. 104).
According to Zizek (1989) the designation of the same signifier to an object constitutes the kernel of that object's 'identity', and this identity is defined, not by the positive content of the signified, but by its positional-relational identity.
233 The (Un) Usual Body
'What it already was' is, however, not determined by what it is, but more by what it is not. "In itself it is nothing but a 'pure difference'... it is a 'signifier without the signified'" (Zizek S., 1989, p. 99). The residual is therefore required to restore unity in order to understand the person's 'identity' because the residual is the kernel which "is always designated by the same signifier" (Zizek S., 1989, p.
98). It is not the signified (the positive content) that defines the identity, but its positional-relational identity. It is the oppositional relation that inheres as the residual. It is the "not-male" or "not-female" that remains in the transsexed body and comes to constitute its identity.
The constitution of the transsexed body's identity through that which it is not can be seen in Butler's (1993, p. 3) discussion of sex as regulatory practice:
'"the materialization of a given sex will centrally concern the regulation of identifwatory practices such that the identification with the abjection of sex will be persistently disavowed". Thus, it is not that which is signified (the positive content) that produces the identity - sex - but its positional-relational identity, that which is the abjection - the constituent outside - that is disavowed and that must remain always and already disavowed. Hence, the residual is this abjection, the positional-relational disavowal that remains as that which the signifier cannot be that produces the identity.
Moreover, once the invention of the identity is fixed by the residual, there can be no pretending that it has not been so fixed. It seems that the disavowal of the mutability of natal sex assignment must occur for two reasons: first, because the rules of unity require the fixing of the identity as a return to the past truth; and
234 The (Un) Usual Body second, because once the past truth has been spoken, once it has entered into language, then the big Other knows it, and we can no longer act as if it is not the case. It becomes the 'truth' because it is 'true' for the big Other, which as Zizek
(1989, p. 103) notes is represented by the point de capiton:
We could say that the point de capiton represents, holds the place of, the big Other, the synchronous code, in the diachronous signifier's chain: a proper Lacanian paradox in which a synchronous, paradigmatic structure exists only in so far as it is itself again embodied in One, in an exceptional singular element.
The synchronous structure in this case is the natal sex assignment which also, paradoxically, is the singular element, the exceptional piece of the puzzle that fixes the identity and unity of the whole field.
It is this function of the Lacanian One that produces the transgender experience that Devor (1997, p. 73) discusses: "most people will think of a perfectly presentable man as a woman if the sex of the person is known to be female". This is the privileging of sex as the master signifier, as the nodal point.
The unity of the field requires his female-ness to override his man-ness. If he is understood as a man, and then assumed to be male, gender would be holding the place of the big Other. The unity of the field is disrupted, however, when the inconsistency between the signifiers man and female come into play. It is exactly this kind of inconsistency and the function of the Lacanian One that the passport form is designed to deal with.
In the transsexed body, the disruption of the unity becomes even greater because, as Sheila Cavanagh (2003, p. 370) notes: "The transsexual denies the idea of sexual difference (by insisting that it is not absolute) and then insists upon
235 The (Un) Usual Body it (to complete the metamorphoses that is transsexuality itself)". As a transitional subject, the transsexed body "lives in 'no-man/woman's' land, the space in- between, making visible the social (as opposed to biological imperative) driving the manifestation of sexual difference" (Cavanagh S. L., 2003, p. 379). In so doing, the transsexed body challenges the realism of the body and its corporeal capacities above and beyond the challenge posed to dominant gender/sex assignments (Cavanagh S. L., 2003). The use of medical technologies, however, appears to refute this denial of sexual difference. By seeming to embrace sexual difference in the transition, the transsexed body disrupts the unity both prior to transition and post transition. This disruption of unity can be seen in the potential or arrested movement of the stabile; the trans body's motion is obvious, unlike the nontrans body's mobile motion, however it is also paradoxical.
Gender, although the most commonly used signifier, is not sufficient if the veracity of the signifier is called into question. The primary physical markers, penis and vulva, are taken as the 'truth' of sex, but they are usually hidden, and thus, without knowledge of these markers, secondary characteristics, such as beards and breasts, usually suffice. When there is the suggestion that these physical markers do not line up neatly gender becomes insufficient as the master signifier. In the case of the transsexed person applying for a passport, the hidden markers become exposed through the requirement of verifiable identity documents; thus the recorded sex is treated unproblematically as the master. If sex cannot be unproblematically called upon (which it cannot be, however it almost always, commonsensically, is used in this way), as in the case of the reassigned
236 The (Un) Usual Body transsexed body, the residual comes into play. While it might be simple to dismiss this residual as an effect of the understanding of sex as immutable, or as biological, there is something lacking in this analysis. The residual seems to remain regardless of understandings of mutability, or the social construction of sex categories, or the arbitrariness and fallibility of sex assignment.
Repression or Disavowal?
The challenge that the transsexed body poses to dominant gender/sex assignments is disavowed through the claim of the residual, which functions by suggesting that the 'truth' of the body's sex has been repressed by the transsexed person. The error inherent in this disavowal is that the signifier is necessarily empty; it is not tied to some positive content, a real object that can unequivocally stand as the arbiter of the 'truth' of the signifier. Yet sex is seen as holding the
"point of extreme saturation of Meaning" (Zizek S., 1989, p. 99) precisely due to its seeming ability to guarantee its veracity. Biological 'evidence', whether it is the appearance of the genitals, chromosomal makeup, secondary sex characteristics, or some other 'fact,' is privileged as occupying the position of master signifier because of its seeming ability to guarantee the positive content of the signifier; and the identity documents along with the PPT 152 (03-09) function as similar 'verifiable' 'evidence.' Yet, as Zizek (1989, p. 99) points out, this guarantee is an effect of an error of perspective: The element which represents, in the structure of the utterance, the immanence of its own process of enunciation is experienced as a kind of transcendent Guarantee, the element which only holds the
237 The (Un) Usual Body
place of a certain lack, which is in its bodily presence nothing but an embodiment of a certain lack, is perceived as a point of supreme plenitude. In short, pure difference is perceived as Identity exempted from the relational-differential interplay and guaranteeing its homogeneity.
In the case of the transsexed body, this error of perspective suggests that only the
residual, and not gender or assigned sex, can offer this transcendent Guarantee.
The threat of the transsexed body, then, is as Cavanagh (2003, p. 380) so clearly
points out that: "Bearing witness to the transsexual body threatens the
mechanisms of repression used to consolidate the fantasmatic presumption of
sexual difference."
Clearly, the transsexed body becomes a sight of anxiety and contestation
regarding the 'truth' of gender/sex that requires a symptom. How to understand
the mechanisms by which the dis-unity is dealt with depends on the level at which
sex/gender are understood to operate. While Cavanagh (2003) speaks of
repression in relation to sexual difference, this privileges sex as knowledge, not
belief (Mannoni, 2003). If sex functions at the level of belief then disavowal
occurs, not repression. Following Octave Mannoni (2003), we can understand the
distinction between knowledge and belief to be a function of what is at risk; if we
are speaking of knowledge then "there is no reality more or less directly at stake
here" (p. 72). If we accept sexual difference as the precursive cornerstone of heteronormativity, then sexual difference must operate at the level of belief, not
knowledge, as reality is most assuredly at risk. While Mannoni (2003) concedes that "every representation initially appears as a reality" (p. 72), sexual difference,
238 The (Un) Usual Body
in part because it hinges on "the word [la parole] of others" (p. 73), is further
shown to operate as a belief.
While commonsensically sex appears to operate at the level of knowledge, this is a function of the disavowal and not actually a reflection of sex itself.
Moreover, repression is obviously not occurring because, in many instances, the anxiety induced by bearing witness to the mutability of the body's sexual difference is not wiped out by amnesia, but occurs out in the open, and, in other cases, the problem of belief is banished by instituting a fetish (Mannoni, 2003). In the Government Offices, the anxiety occurs out in the open, as evidenced by the workers' responses to the transsexed person's requests, as well as by the sea of red tape and forms with which the transsexed person is almost drowned. The understanding of some internal essence of sex, be it brain sex, chromosomal sex, hormonal sex, anatomical sex, or what have you, has been shored up through scientific research, and as such functions as a belief that is underwritten by people we 'ought' to trust. We can, thus, understand ourselves to be "objectively deceived" in a manner that allows the transformation of this into the "magical" belief required after disavowal (Mannoni, 2003, p. 87).
It is just this kind of 'magical' belief that Sheila Cavanagh and Heather
Sykes (2006, p. 81) note in relation to sex testing in the Olympics: 'Experts' have
"tried to make a categorical gender [sic] binary self-evident through medical technologies but each version of the test revealed subtle differences between male and female genders [sic], as opposed to clearly delineated 'opposite' sexes."
239 The (Un) Usual Body
Moreover, as Joan Fujimura (2006, pp. 61-62) quotes Giovanna Camerino, professor of human genetics, University of Pavia, Italy:
Everybody has found interaction of everything with everything. With different results, etc., [sex determination] is complex, and the genetic term is leaky. Leaky. This is a prokaryotic genetics term. It means that things are not that stable. They are not something strongly determined, (emphasis included in original)
The interesting part about this acknowledgement of the 'leakiness' of sexual difference from an expert source is that it forms part of the disavowal. Camerino knows that sexual difference is not "strongly determined" and nevertheless, she continues to try to determine it. She is able to maintain her belief in the face of reality because of the credulity of others; it is the credulity of these 'others' that then assumes the burden of her beliefs after disavowal (Mannoni, 2003). In this way mutability is disavowed through the call to sexual difference as an internal essence.
Prohibitions
Medical transition requires a private-publicity (Mandlis, 2009). Through this, the transsexed body can be understood as demanding attention in that the bodily transition cannot occur without outside attention. The transition process requires the transsexed person to narrate his/her life as transsexed, and as such requires that others be aware of, and party to, the transition itself; moreover, the transition occurs publicly "because the transition is physically written on the body for others to see" (Mandlis, 2009, p. 1361).
240 The (Un) Usual Body
In the Government Offices, this transition becomes even more public, as
the requirement to produce 'verifiable' identity documents forces the transsexed person's trans-ness into the public sphere. According to Cavanagh and Sykes
(2006), "sex-changes reveal the essential mutability of the body" (p. 97), a
mutability that cannot occur unnoticed. The transsexed body's demand for an
audience to "witness the excess, the inversion, the topsy-turvy, the process of
becoming something that one is thought not to be" (Cavanagh S. L., 2003, p. 373)
can then be met with a prohibition. The residual, along with the PPT 152 (03-09)
and the plethora of documents required to amend a birth record, can be understood as a structural way to justify the enforcement of such prohibitions.
The mutability of the transsexed body can be seen as an excessive
enjoyment, an enjoyment that, in the interests of justice as equality, must be
prohibited. As Zizek (2006, p. 37) notes, Lacan, like Nietzsche and Freud,
believes that justice as equality is founded on envy: "The demand for justice is
ultimately the demand that the excessive enjoyment of the other should be
curtailed, so that everyone's access to enjoyment will be equal." The residual can then be seen to function as a shared prohibition; a prohibition that is required
because "it is not possible to impose equal enjoyment, what one can impose is an
equally shared prohibition" (Zizek S., 2006, p. 37).
Butler (1993, p. 55) argues that sex operates to constitute bodies through
"the bounding, forming, and deforming of sexed bodies [that] is animated by a set
of founding prohibitions." The residual functions within this same logic as a
founding prohibition that forecloses the mutability of the body in order to render
241 The (Un) Usual Body it immutable. Cavanagh and Sykes (2006) argue that this prohibition is required because of the equation of the mutability of the body with human mortality and death; Butler (1993) discusses the fear of castration as a possible ground for prohibition (pp. 205-206). The effect of the witnessing of the mutability of the body, whether based on fear of death or fear of castration, produces anxiety, an anxiety that, according to Cavanagh and Sykes (2006, p. 93), the psyche deals with ambivalently, "with one part undergoing repression and the remainder undergoing idealization." Thus the prohibition on the mutability of the body produces on the one hand fetish and on the other hand phobia.
Fetishes and Phobias
The ambivalence with which the psyche deals with the transsexed body's mutability produces fetish or phobia depending upon the acknowledgement of the anxiety. As Zizek (1997, p. 103) explains, the: ambiguity of the object which involves the reference to the two lacks becomes visible in the guise of the oppositcs between the fetish and phobic object; in both cases we are fascinated, our attention is transfixed, by an object which functions as the stand-in for castration; the difference is that in the case of the fetish the disavowal of castration succeeds; while in the case for the phobia object, this disavowal fails and the object directly announces the dimensions of castration.
Fetishes are thus ways of coping with anxiety, and by instituting the fetish, "the sphere of belief disappears from view" (Mannoni, 2003, p. 90).
However, the fetish also "reminds us that what is culturally desirable also covers over a cultural anxiety stemming from a lack, a fear or a need to protect
242 The (Un) Usual Body the self from punishment" (Cavanagh & Sykes, 2006, p. 93). Cavanagh and Sykes
(2006, p. 93) clearly explain this in relation to muscles, which they argue are a gendered site in which border-crossings incite anxiety:
When the anxiety surrounding muscles is not recognized, it is disavowed and those muscles can be desired as fetish objects. When the threat of castration is recognized in the sight of muscles, the anxiety is acknowledged and those muscles become phobic objects.
If we think through the above section in relation to the mutability of the body, we can see that the disavowal of the body's mutability as a symbol of castration results in the transsexed body being fetishized; when the anxiety around mutability is recognized, the transsexed body becomes a phobic object.
The transsexed body's mutability and the anxiety that mutability produces have large effects. Butler (1990; 1993) would have us believe that the effect is the undermining of heterosexuality, yet while heterosexuality begins to unravel in the face of the transsexed body, the effects are much greater than that. Following
Cavanagh (2003, pp. 377-378), I argue that:
The traumatic blow dealt by the transsexual is, therefore, not in the undermining of heterosexuality per se, but in the revelation that sexual difference (a condition of heterosexuality) is a culturally sanctioned fantasy that has more to do with the mind than the parameters of the body.
The transsexed body shows not only the mutability of the body, but that the mutability of bodies suggests that the body cannot be assumed to present the real in an unmediated form. The signifiers that allow us to function in the symbolic order are part of the symbolic order, whether they seem to refer to a positive content or not.
243 The (Un) Usual Body
Sexual difference cannot, then, be thought of as an interiority, an essence
(referent, signified), that is captured by the signifier. The inability to fix the signifier - sex - to a positive content has significant ramifications for the ways in which we can understand bodies, as well as the forms of publics they sustain. The mobile and the stabile, as Calder discussed, are not oppositional, as the trans body and the nontrans body both demonstrate mutability. Moreover, the governmental requirements of significantly more documentation, increased fees, and difficulty accessing information can then be understood as prohibitions, symptomatic of the government's disavowal of the mutability of sex.
Ethnographic Story 3 After my birth certificate was amended to reflect my new legal status as male, I went to get a new passport. I had all of the required supporting documents. I had the application form and the pictures signed by my guarantor, proof of citizenship (my new birth certificate), documents to support my identity, the fee, and my previous passport (issued in my old name, with an old photo, and listing me as female). The first officer noticed that the name and sex listed in the previous passport was different from the ones on the new application. He also noticed that the photo in the old passport looked different than the new photos and me. He demanded to know why. I explained that I was transsexed and that I was applying for a passport in my new name and sex. He seemed contused and referred me to another officer.
244 The (Un) Usual Body
The second officer looked at my documentation, and noticed that the name and sex in the application didn't match the ones in the previous passport. She asked why this was the case. Once again, in a crowded government office I found myself explaining, repeatedly, that I was transsexed and that I needed a passport that had a recent (accurate) picture of me, and that presented my legal name and sex. She referred me to a third officer. This time I explained to the officer immediately why I had been referred to her. She told me to wait and left the counter. She returned with the PPT 152 (03-09) form and informed me that I had to sign it in order to get a passport. I refused, stating that my evidence of citizenship did not list a different sex than I wanted to appear in the passport. She told me it didn't matter. She said that all transgendered people had to sign this form in order to get a passport. Again, I refused, stating that this form was not applicable as my evidence of citizenship listed me (correctly) as male, and that was what I wanted listed in my passport. She told me that if I did not sign the form, she would not be able to issue me a passport. I stared at the sign warning that abusive language or raised voices would not be tolerated and that offenders would be removed and took a deep breath. Once again, I refused to sign the form, stating that what was clearly written on the form did not apply in my case, and asked to speak to her superior. She smugly told me she would inquire and left the desk. When she
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returned, she brusquely informed me that I was correct; I did not need to sign the form. My passport was processed and I received it in the mail a few weeks later.
Once again, this story shows us that the trans-identified person had to be
more knowledgeable than the government official, and had to repeatedly correct
the officer; corrections that could at any time have caused the officer to refuse
service or have the person forcibly removed from the office. Moreover, the
officer's insistence that the form was required points to a disavowal of the person's sex, a disavowal that the system supports through the use of the form and the obvious lack of education and training for its employees.
Having forms that the staff are unaware of is not necessarily reflective of
institutional malice, but it is minimally reflective of a bureaucratic service failure
based on incompetence.114 The systematic suppression of information simply by
making it inaccessible may or may not be intentional. In relation to gender
reclassification, this systematic suppression of information is ubiquitous. As
discussed earlier in relation to gender reclassification on birth records, the
information required to access a gender reclassification on a passport is so
inaccessible that it is difficult not to consider gender reclassification information
as being subject to censorship. The complex construction of such barriers to
access to information function as a form of passive harassment that may also lead to more obvious and aggressive forms of harassment, as evidenced in the
1141 want to thank Law Librarian Kathryn Arbuckle for her very helpful and astute insights into bureaucratic incompetence that allowed me to frame this work in this way.
246 The (Un) Usual Body ethnographic stories. This level of bureaucratic incompetence across such diverse government agencies suggests that this censorship of information may well be, if not malice, at least a form of wilful ignorance.
Removal of Protections
It is also important to point out that in requiring the transsexed person to use this form the Canadian government is, for all intents and purposes, removing the very protections that travelling on a Canadian passport appears to offer.
Historically, the passport was a letter of safe conduct given by the Sovereign to a subject, usually for travelling on state business, or to a personal friend of the
Sovereign (Passport Canada, 2006). This historical letter of safe conduct meant quite literally that the person travelling with the letter was under the protection of the Sovereign. Today, inside the front cover of the Canadian Passport there remains a request for safe passage issued in the name of Her Majesty the Queen.
The historical understanding of protection also inheres, in that citizens of Canada have an expectation that, when travelling on a Canadian Passport, they will be protected by Canada in the event that they encounter difficulties in a foreign land.
That the holder of a passport issued with a PPT 152 (03-09) cannot "make claims or demands against the Passport Office, Canada or any representative of the
Canadian government" suggests that this person's citizenship is somewhat different than the citizenship of another (protected) Canadian traveller. As Craig
Robertson (2005, p. 79) remarks in relation to the American passport: "The requirement that applications be submitted on standardized forms accompanied by specific documentary evidence of citizenship ... produced citizenship as a usable,
247 The (Un) Usual Body administrative fact." The fact(s) of citizenship(s) produced by Canadian passports is plural through the requirement and enforcement of the PPT 152 (03-09). In this way the form can be understood to act as a technique of responsibilization, and a means of social control (Rose N., 2000) that creates different kinds of viable citizenships.
Passport Canada states that: "From its simple beginnings as a letter of safe conduct, the passport has become the single most important international identity document a traveller can carry" (Passport Canada, 2006). It appears that one of the important identity features contained within the passport is the differentiation of different kinds of citizenship as produced by the forms required to obtain the document.
Conclusion
While access to passports may not be required or desired by all, barriers to access for a particular group of citizens does tell us something about the construction of citizenships for all citizens. As Antoinette Burton (2005, p. 11) observes: "Robertson also links his archive story to the history of exclusion as embodied by the passport, the would-be panoptical technology for archiving personal identification via a catalog of bodily characteristics"; a catalogue of characteristics that is further problematized by trans bodies. The ethnographic stories and my reading of the PPT 152(03-09) show that the systemic denial of the transsexed person's sex is a foundational problem faced by transsexed people in a
248 The (Un) Usual Body myriad of situtations, and that this institutional transphobia functions through bureaucratic incompetence and the systematic suppression of information. If we do not address these foundational problems, then a transsexed person's citizenship will always be constructed somewhat differently that a nontranssexed person's.
In this context, access to the required information in order to access ID becomes a barrier that functions as a form of censorship. This censorship may or may not be intentional, and may or may not be a result of malice, but what is clear is that it is a systematic erasure and suppression with far reaching consequences.
Some of these consequences include the naturalization and reification of
"common sense" assumptions about gender, and the differences between men and women; consequences which not only serve as a basis for institutional transphobia but also for misogyny.
This passport form functions as a visible demonstration of the manifestation of discourses in everyday life; manifestations that permeate related discourses in problematic, yet authoritative ways. The construction of different kinds of citizenships evidenced by the form comes about from the collaboration of the discourses of law and medicine/psychiatry as speaking the truth about sex.
The verification of identity required to access citizenship comes about through the intersections of law, medicine and governance; yet this intersection also produces the only acceptable knowledge - a knowledge that disavows the mutability of sex
- regarding the veracity of identity.
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Phase 5: Future Possibilities
The product of the interpretive bricoleur's labor is a complex, quiltlike bricolage, a reflexive collage or montage - a set of fluid, interconnected images and representations. This interpretive structure is like a quilt, a performance text, a sequence of representations connecting the parts to the whole. (Denzin & Lincoln, 2008, p. 8)
Theorist Ruth Wilson Gilmore, who wrote the Golden Gulag, defines racism as "group differentiated vulnerability to premature death." So, in her view, oppression doesn't always operate through the framework people are most often taught - individual discrimination ('I won't hire you because you are trans,' 'I'm going to beat you up because you are trans'). Actually, the way oppression and discrimination works is through the marginalization of entire communities and entire populations in ways that result in their premature death. So, for example, if you don't have access to health care in your childhood and you also live in a community with a lot of policing, you are far more likely to end up spending time in the juvenile system or prison, and more likely to have long-term chronic health problems, etc. Premature death refers to all the ways in which the distribution of life chances affects our lifespan. I really like this definition because it argues against the idea that to remedy discrimination, oppression and domination we must use punishment-focused rules and target individual discriminators - build more prisons, and have more policing. It refuses to naturalize the status quo and argues against the idea that the way things are currently divvied up is fair and right. - Dean Spade (Hewings, 2008)
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Chapter 7: Conclusions, Interventions, and Directions Conclusions
The overall purpose of this dissertation has been to contribute to the nascent field of critical trans theory by examining the intersections of psychiatry,
law and citizenship as they come together to make sense of trans (and therefore
implicitly nontrans) bodies. Throughout this project, the intricacies of this coming together have proven difficult to unpack as they tend to fly in the face of conventional wisdom. This is perhaps the most important reason that a critical trans theory needs to be more actively engaged both in the academy and social justice activism, because conventional wisdom tends to reinforce the naturalization of sex difference as a biologically driven binary system of categorization that underpins legal and medical discourses. Transphobia is built
foundationally into these discourses, forming the basis from which the naturalization of sex difference is reified, as well as functioning to produce law and medicine as the only legitimate producers of knowledge about sex. In this way, the naturalization of sex difference is a tautology, yet a ubiquitous and powerful one.
Transing as a methodology offers the potential to expose such foundations. By taking aspects of one discipline, cutting those aspects free from the rest and suturing them to aspects of another discipline, an entirely different form can emerge. Much like the rearrangement of genitals that constitutes SRS, the transing researcher's skills offer the potential to produce something that many may think impossible. How do we produce knowledge that gets outside of
251 The (Un) Usual Body conventional notions, unless we are willing to use unconventional methods? This project, through the exposition of transphobic foundations and the linking of previously unlinked positions, offers a number of innovative understandings that challenge traditional interpretations and more accepted readings.
One very important, but contentious, finding is the differences of process between transphobia and homophobia as discussed in Phase 3. LGBTQ is to some degree an untouchable community construction. To argue for a separation of the T is to be admonished for being homophobic, heteronormative, elitist, ungrateful, and (sometimes) down-right foolish. To suggest that gender-crossing has nothing to do with sexuality draws attacks from lesbian and gay communities, trans communities, and straight communities; yet, as demonstrated in Phase 2, the conflation of gender and sexuality that grounds these attacks stems from the historic construction of gender-crossing as indicative of homosexuality within psychiatry and law around the time of German unification in the nineteenth century. This construction came about with the professionalization of psychiatry and the rise of forensic psychiatry in combination with the implementation of strict laws regarding 'unnatural fornication' and an increasing socio-hygienic prophylaxis movement designed specifically to protect the hegemonic masculinity of the military class, and more broadly the health and well-being of the German
Volk.
Interestingly, this historical combination has previously been regarded as the point that demonstrated the creation of the homosexual (Foucault, 1990;
Kennedy H., 1988), and this (mis)understanding has been repeated and
252 The (Un) Usual Body reproduced influencing entire disciplines such as gay and lesbian studies and queer theory. To unravel such a conflation to suggest a different path offers to ruffle more than a few feathers, as it potentially undermines the foundation of many well established scholars, studies, and disciplines. Yet such an unravelling
also reveals the way that such disciplines have accepted the binary logic of sex
offered by medical and legal discourses, regardless of their attempts to incorporate trans bodies within them.
A second potential point of contention within this project is the rejection of rights-seeking strategies as the most practical or efficient social justice tactic.
The seduction of antidiscrimination law, especially in Canada where human rights
and the Charter are (mis)understood as offering the best possible protection from
discrimination and inequality, opens this position to voracious attack and makes it
seemingly difficult to defend. How can one be both for equality and against the
inclusion of a separate and discrete category of protection in law? That these are
seemingly irreconcilable differences appears commonsensically to make my
position one of advocating for inequality. Yet, as argued in Phase 3, legal
strategies need to take into consideration the processes that discriminate, not
merely the abstract concept of equality. Strategies that do not act on the processes
of transphobia are unlikely to sufficiently remedy the everyday experiences of
discrimination faced by trans people.
What the linking of psychiatric and legal discourses in this manner offers
is the potential to demonstrate the foundational processes at work that fix and
naturalize the binary system of logic that categorizes sex and permeates our social
253 The (Un) Usual Body lives both inside and outside of these institutional circles. As Wendy Brown
(1995) argues, there is a serious danger in pursuing rights-based strategies in this manner because the claim to identity appears to be built on the naturalization of the identity, but is in fact a result of a regulatory ideal. In this way, "disciplinary productions of identity may become the site of rights struggles that naturalize and thus entrench the powers of which those identities are the effects" (Brown W.,
1995, p. 120). The relationship of citizenship to law and psychiatry further complicates and reinforces this fixing of sex. Denying the collusion of these discourses does not negate their ability to speak with authority about and to trans embodiments, which demonstrates the third contentious point raised in this dissertation: that the removal of GID from the DiSMwill negatively impact a portion of the trans community without offering the positive result desired by those activists lobbying for such a removal.
Access to healthcare, access to documentation, the ability to move freely within and across borders, freedom to associate, access to social opportunities, access to legal gainful employment and housing, and access to legal remedy are all life chances that are often distributed away from trans individuals and communities. This distribution of life chances away from members of trans communities leads, ultimately, as Dean Spade (Hewings, 2008) and Ruth Wilson
Gilmore (2007) argue, to premature death. There are, unfortunately, many obvious examples of premature death from violence in the murders and suicides of trans people. The National Centre for Transgender Equality in the US recently released a survey "Injustice at Every Turn: A Report of the National Transgender
254 The (Un) Usual Body
Discrimination Survey" documenting such obvious forms of premature death with
41% of 6450 trans respondents reporting having attempted suicide compared to a national average of 1.6% in the general population (Grant, Motter, Tanis,
Harrison, Herman, & Keisling, 2011). There are also less obvious ways that premature death occurs, as Spade mentions in the quote beginning the Phase, such as occurs with other confounding social problems including racism, poverty, homelessness, addictions, isolation, and the health issues associated with these.
While these inequalities are experienced by many trans Canadians, they cannot be resolved by human rights legislation that understands oppressions as individually based.
Moreover, this distribution of life chances away from trans communities is justified through the relationship of citizenship to law and medicine. The construction within law and governmental practice of different forms of citizenships, as discussed in Phase 4, makes the unequal distribution of life chances a legitimate act of government. In opposition to T.H. Marshall's (1950) account of social citizenship rights which promised citizen equality, these different kinds of citizenships result from neo-liberal practices through which the contingency of modern citizenship becomes apparent (Brodie, 2002; Clarke,
2000). Understanding citizenship as a "set of practices (juridical, political, economic and cultural) which define a person as a competent member of society"
(Turner B. , 1993, p. 2), trans Canadians can be seen as less competent, and therefore less deserving of resources. Attempts to end inequality that do not take this into account are unlikely to sufficiently overcome disparities.
255 The (Un) Usual Body
The overarching questions that remain are: How then can this foundational transphobia be dismantled? How might the tautology of sex difference as fixed and natural be overcome? What strategies can be employed that strike at the processes of transphobia, such that the distribution of life chances benefits trans
Canadians more equally?
Ultimately, the purpose of this work has been to set the background required to posit questions such as these that were previously thought
(dis)ingenuous. Because trans bodies appear to open up a space of impossibility within discourses that offer no allowance for impossibility, trans bodies offer the potential to invoke a differend (Lyotard, 2007).Il5 As an interruption of incomprehensibility in institutions that claim to be closed and all-encompassing, trans bodies offer an important space from which to observe the usually silent mechanisms at work in the regimes of practices of sexing bodies through governmentality. What these silences tell us may help to formulate strategies that breakdown this foundation.
Inevitably, the limitations of such a critique are invoked by asking: what are the alternatives? How can equality be achieved (or at least attempted)? How can we change the transphobic foundations of these discourses? And how can we do these things now? What these questions dismiss is that the change that is
sought cannot occur without a radical shift in the foundational practices of sexing.
This kind of change requires first and foremost a willingness to bring the political
115 Lyotard discusses the differend as an excess that cannot be phrased, a silence, an impossibility that precludes the ability to prove because there is an inability to speak. There is a very interesting time element in the logical arguments laid out by Lyotard that might intersect well with the potential or arrested movement of the stabile that would be interesting to explore further, however this exploration is outside of the scope of this dissertation.
256 The (Un) Usual Body terms of its own commitments under scrutiny, thus transforming itself and the discourses through which it is advanced (Brown & Halley, 2002). While this work has not shown any clear answers to these questions, I have certainly demonstrated my willingness to examine my own political commitments, and to transform them as well as attempting to transform the discourses of law and medicine. When I initially embarked on this project I most certainly did not envision rejecting a rights-based approach.
Bringing such a critical lens to this work has, however, offered me the possibility of seeing a different way forward; one that tries to attend to the particularities of the situation, rather than simply following the (not necessarily successful) template of another. What this form of critique allows, as Brown &
Halley (2002, p. 29) argue, is to bring "out the tensions, problems, or binds in a particular political formation, it also has the capacity to reconnect us to our aims and hopes, as it helps us to disengage from the twisted version of those aims and hopes in particular political or legal formations." The rights template is a well- used template; however its success is arguable. Moreover, the concerns of trans activists are somewhat removed from the aims of a rights based approach, yet the distance between these positions has been warped in a manner such that they appear on the surface to be aiming for the same goal.
Another limitation of critiquing such authoritative discourses without offering concrete solutions to the inequalities they create and perpetuate is that the work can potentially be read as an indication of a lack of political engagement.
Rather than joining in the trans rights rally held in Edmonton in February to
257 The (Un) Usual Body support Bill C-389,1 am sitting at my computer writing the conclusion to this dissertation. Why, activists might ask, am I not speaking at the rally, or marching with a sign, or writing a letter to my Member of Parliament? These, the same activists might cry, are political activities; these are political actions designed to end discrimination and promote equality. While the claims within these questions have been demonstrated within this work to be misguided or incorrect, the personal attack of being non-political, or of producing something that is not seen as political cannot be left unaddressed. In the introduction of this dissertation, I specifically laid out my desire to find a common ground between academic theory and lived experience. My work is political, and it does have political intentions.
As Brown & Halley (2002, p. 33) note: "Critique potentially reinvigorates politics by describing problems and constraints anew, by attending to what is hidden, disavowed, or implicit, and by discerning or inventing new possibilities within it."
This is how I plan to bring this academic work back to lived experience, by reinvigorating a politics that is focussed on the processes of transphobia.
This work offers new possibilities to many different disciplines within academia, as well as offering insight into the specific processes through which transphobia operates. The publication of sections of this work in academic journals demonstrates an obvious contribution to the creation and expansion of a critical trans theory. Moreover, the critique of rights strategies that I articulate in
Phase 3 is also more generally applicable to legal critique of rights discourse. The historical genealogy of trans within psychiatry is an historical tracing that has not
258 The (Un) Usual Body been published in any other work, and offers the potential to indelibly alter the historical understanding of trans, sexual deviance, and homosexuality.
Perhaps of equal importance to the scholarly contributions of this project is the way that my research has influenced some members of the local trans community to think of transphobia and its remedy differently. This is the point at which the academic moves into the everyday. The theoretical critique of the regulatory practices of law, medicine, and citizenship that (re)produce, naturalize, and fix the binary logic of sex impacts more than theory; it offers a praxis based on the recognition of the disavowal and the regimes of practices that produce this binary as fixed.
Interventions
What interventions are currently available? Working to change policies, for example, removing the requirement to state gender or sex on government issued identification, would have a tremendous impact on the way that ambiguously gendered or transsexed people are treated in many everyday situations. The identification of an individual would not be seriously hampered by removing this; there are not many situations in which the ability to recognise the difference between one person and another person is based solely on their government reported gender or sex. What would change in this scenario is some of the policing of gender that occurs in everyday situations that really do not require gendering at all.
259 The (Un) Usual Body
The concept of changing policy instead of legislation may be a significant move towards meaningful social change in everyday lived experience. In any struggle for dignity and human rights, the most disadvantaged members of groups need to be provided with basic necessities of life first. We may argue in court over someone's right to not be discriminated against because their gender is ambiguous, but if they are unable to access accommodation and employment they will freeze or starve to death waiting for the courts to rule in merely one example of the ways that legislation and govemmentality perpetuate premature death of marginalized populations. Moreover, the court ruling does not remove the discriminatory behaviours and opinions of individual landlords, employers, healthcare workers, public employees, and community service workers, meaning as argued in Phase 3, that changing law will not change many people's everyday experiences of transphobia. Everyday experiences of transphobic violence perpetrated by individuals will not be changed by legislation, and neither will the systemic transphobia that permeates psychiatric, legal, and citizenship discourses.
The verifiability of identification through documentation, as discussed in phase 4 is an illusion. While commonsensically we would like to think that it is easy to match someone (especially a "bad" someone) with a list of identifying characteristics (such as name, age, gender) this is much harder to actually do.
Possibly if we had barcodes imbedded in us at birth that held all of the information, then we could determine that someone was or was not who we thought they were. However, someone who is determined to undermine the system would likely figure out how to remove their barcode or change the
260 The (Un) Usual Body
information on it. The point is that while we believe that we can know who
someone definitively is, particularly through government issued ID, we cannot;
the knowing of the person, or the veracity of their ID, is but an effect of the
document and the process of documentation as a verifying technology.
The possibility that we cannot tell the difference between the 'innocent'
and the 'bogus,' as Sara Ahmed (2004, p. 47) observes, "swiftly converts into the
possibility that any of those incoming bodies may be bogus." Government issued
ID, therefore, has a performative effect. It produces a future 'security,' and in so
doing also produces a 'danger;' however, in this it simultaneously reiterates a past
danger and a past security. As Sara Ahmed (2004, pp. 92-93) discusses:
On the one hand, the performative is futural; it generates effects in the constitution or materialisation of that which is 'not yet'. But, on the other hand, performativity depends upon the sedimentation of the past; it reiterates what has already been said, and its power and authority depend upon how it recalls that which has already been brought into existence.
The danger that ID poses is that the person is not really the one who was issued
the ID; that instead someone 'bogus' is using the ID to obtain something through
deception that they should not obtain, and that this endangers the benefits
received by those 'innocent' people whose ID is correct. Moreover, the conflation
of trans with sexual perversion - as discussed in Phase 2 - produces the trans body
and their ID as a significant security risk. Male sexual perverts are considered a threat to women in sex segregated facilities, such as washrooms and changing
rooms, and the conflation of trans with sexual perversion reinforces this 'threat.'
We alleviate the anxiety posed by the threat that we might not know someone's
sex through the requirement to continually document everyone's sex. This anxiety
261 The (Un) Usual Body then gets framed by asking how we can justify compromising the safety of women in order to allow transwomen access to ID. This framing both invokes the danger - that a male sexual pervert will be able to access women's space - and suggests that the positions of inclusion of trans bodies and the safety of women are mutually exclusive. Exposing this mechanism might offer more effective means of dealing with this anxiety, and would help to dispel some of the common myths used to justify discrimination.
Future Directions
What is needed then is a much larger analytics of government in order to analyze practices of government in relation to gender/ sex. The next step in my research is to work from the foundation provided by this document to move into a significantly larger study of the regimes of practices of sexing/ gendering. Such a study will attempt to demonstrate that our taken-for-granted ways of doing things in relation to our understandings, assumptions, values, attitudes, and beliefs about sex/gender difference, as well as how we think about and question them are neither entirely self-evident, nor are they inevitable or even necessary (Dean,
1999). In this way, the regimes of practices that I call practices of sexing can be analyzed in order to determine the specific conditions under which the particular entities of male/female and man/woman emerge, exist, and change through the institutional practices of government. Because such a regime is constituted by multiple elements, which are assembled into relatively stable forms of organization and institutional practice, regimes which are informed by and give
262 The (Un) Usual Body rise to various forms of knowledge and expertise, a diverse approach must be used to examine them.
The increasing visibility of trans people in Canadian life (Baber, 2008;
Reuters Life, 2008; Stewart, 2010; Ward, 2008) makes questions regarding gender classification more obvious and pressing. How do we determine whether someone is male or female? Should trans people be allowed to live with, work with, compete against, or go the washroom with non-trans people? How should
ID be accessed? What should it include on it? Increasingly questions such as these are being asked, and trans people and community groups are demanding access to services, facilities, employment, and healthcare by framing those demands in human rights discourse (Chambers, 2007; Kirkup, 2009; Moreau, 2010; Sinnema,
2009). These demands are increasingly being met with resistance in which other groups of people attempt to justify the exclusion of trans people from many forms of public participation (Anonymous, 2008; Brown J., 2008; Dedyna, 2009;
Kirkup, 2009; Lang, 2009a; Rubenstein, 2010). The Real ID Act116 in the US, which uses new data comparison practices to determine "no matches" in different forms of government issued ID, is one example of this kind of resistance that was
117 not actually intended to deal specifically with trans individuals.
Governments, institutions and organizations have come up with a plethora of legislation, policies and practices in response to both the demands of trans people and the concerns of those opposed to trans inclusion. Gender reclassification policies, policies that govern the recognition of a change in a
116 Real ID Act of 2005, Pub. L. No. 109-113, 119 Stat. 231 (2005). 117 For an excellent, detailed discussion of this Act in relation to trans people see Spade (2008).
263 The (Un) Usual Body person's gender by a provincial or federal agency, have been created in recognition of the need for trans Canadians to have access to ID. These policies, however, are inconsistent and differ from one region, jurisdiction, or institution to the next. As Dean Spade (2008) writes:
Many people are under the impression that everyone has a clear "legal gender" on record with the government, and that changing "legal gender" involves presenting some kind of evidence to a specific agency or institution in order to make a decisive and clear change to the new category. Because of the long history linking transgender identity with medical authority and popular cultural beliefs that changing gender involves surgical procedures, some may assume that achieving gender reclassification requires presenting medical evidence to an appropriate administrative or judicial decisionmaker. As it turns out, the reality of the rules that govern gender reclassification in the United States is far more complex.
The rules in Canada are similarly complex. While these policies rely on
"common-sense" assumptions about gender/ sex, what counts as common-sense is contested and varies. As discussed in Phase 4, inconsistencies between policies that rely on the presence of primary sex characteristics versus those that rely on the absence of primary sex characteristics produce moments of indecipherability in which someone's sex may be female in relation to one policy and male in regards to another. These inconsistencies also demonstrate how law functions in cooperation with medicine to fix sex as a stable, immutable category within a binary system of logic. The refusal of government to recognize the paradoxical position of maintaining that specific aspects of anatomy produce the sex of the body in relation to trans people, while nontrans people are not held to the same standard, functions not merely as an example of transphobia, but as a larger demonstration of the way that governmentality and law cooperate to produce and
264 The (Un) Usual Body naturalize the binary logic and its hierarchical oppression of those not accorded the status of men. In Alberta, the requirement of FTMs to provide proof of construction of a penis, while there is no provision for the mandatory changing of a birth record based on the accidental loss of a man's penis, is one example of such paradoxical understandings of policy (Government of Alberta, 2000).
The ambiguity of common-sense becomes apparent only when inconsistent perspectives are compared. Within gender reclassification policies, such inconsistencies lead to confusion and concern both within the transgender community and in larger Canadian society. Given such discrepancies, there is a pressing need for a comprehensive interprovincial analysis of Canadian policies in academic scholarship.
Transgender studies is a new and growing field, with critical trans theory occupying a very small portion of this work. Current scholarship in Canada has tended to focus narrowly on single instances of gender reclassification policies and their effects. The majority of these studies have considered the effects of a single province's policies of gender reclassification for the purposes of access to
ID and employment (Chambers, 2007; Devor, 1997; fmdlay, Laframboise, Brady,
Burnham, & Skolney-Elverson, 1996; Karaian, 2006), or two provinces with similar policies (Namaste, 2000; 2005), or a single institution's policy (Cavanagh
& Sykes, 2006; Kirkup, 2009). In the US, Dean Spade's (2008) work has demonstrated that similarly situated people are treated differently due to the requirements of some states for proof of a lack of primary sex characteristics of the birth assigned sex, while other states require evidence of primary sex
265 The (Un) Usual Body characteristics of the chosen sex assignment. In Canada, as I discussed in Chapter
4, similar inconsistencies exist, which then lead to similarly situated people being treated dramatically differently. Because the birth record has significant effects beyond the issuance of the certificate, as proof of citizenship and identity, the certificate is required for many other forms of public participation. The interaction between provincial/territorial policies and practices on gender reclassification for birth certificates and other governing bodies, such as federal corrections policies, means similar policies with different interpretations have dramatic consequences.
Uncovering this interaction offers insights into the ways that such policies work to construct and maintain particular categories of bodies. Moreover, these inconsistencies tell us about the ways that gender/sex is understood, and the assumptions, values, attitudes, and beliefs under which the practices of gendering/ sexing are conducted.
This kind of study will contribute to critical trans theory, while offering a form of praxis similar to the work this dissertation has provided. Social and political change are driving forces for my research; however key to any change is education and an efficiency of action. Real social and political change will not happen unless the target of the action functions as part of the mechanisms of practices that regulate sex. Knowing what to target, and aiming for that target, requires information that is currently hidden away. Transing offers one means of seeing differently, a means of attending to the particularities of the situation, and the potential to connect our aims with the political or legal strategies that will disrupt the processes of transphobia.
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