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Sexuality Research & Social Policy Journal of NSRC http://nsrc.sfsu.edu

December 2007 Vol. 4, No. 4

Introduction to Special Issue The State We’re In: Locations of Coercion and Resistance in Trans Policy, Part I

Paisley Currah, Dean Spade

Over the last 15 years, the rights move- either as being unstable and illegitimate or as frauds. ment has burgeoned in the United States. A handful of Furthermore, in many law and policy contexts, trans- states and dozens of localities in the United States have advocates try to steer clear of explicitly referring passed nondiscrimination legislation inclusive of gender to social theories that highlight gender as ungrounded identity; courts have begun to rule that transgender peo- because such social theories inadvertently resonate with ple should be treated equally; educational institutions what most policymakers already believe about trans- and companies are beginning to include gender people. Because of this sharp contrast between and in their nondiscrimination policies. theoretical frames being used to understand gender and The term transgender has moved into mainstream dis- the frames employed by policymakers, who often hold the course with increasingly positive representations of trans lives of trans people in their hands, advocates struggle to lives in the media—from countless local newspaper arti- devise policy solutions that improve the lives of trans cles on transgender people and their transitions, to people, are politically viable in gender-binary-reliant respectful mentions in (some) political candidates’ administrative contexts, and still comport with the notion speeches, to the ongoing appearance of trans characters that gender is not grounded in the body. in soap operas. However, with the rise of the new social movement Lagging behind that tremendous upsurge in aware- in the United States that has coalesced around the term ness of transgender issues, however, has been research transgender, the subjects of that data have begun to on transgender lives and practices that centers on the con- revolt (Stone, 1991; Stryker, 1998). So, too, has a new cerns and perspectives of those whose gender identity or generation of researchers and researcher-advocates. But gender expression does not conform to social expecta- before we discuss the newer players and the work that tions. Of course, no shortage of research (Billings & we are delighted to showcase in this special issue of Urban, 1982; Hausman, 1995; Raymond, 1979) has repro- Sexuality Research & Social Policy: Journal of NSRC, duced traditional pathologizing narratives of transgender The State We’re In: Locations of Coercion and Resistance people. Similarly, although work in theory (Fausto- in Trans Policy, we want to step back and frame some of Sterling, 2000; Halberstam, 1998) has raised important the tensions inherent in the relationship between questions about gender as a process, as well as the limi- research with transgender people and advocacy for trans- nality of gender, those approaches are not of much util- gender communities. ity to trans advocates. Whereas this work has situated advocacy is almost always gender as something that shifts and that results, ulti- grounded in a human rights framework. This framework mately, from social forces, in legal and policy contexts might be articulated differently depending on the partic- gender tends to be understood as one of the most stable ular viewpoints of the advocates or on the particular social and grounded of all social identifiers. As a result of this and historical context in which such advocacy takes place definition, transgender individuals are often viewed but, in any case, its general gist is that (a) individuals

Address correspondence concerning this article to Paisley Currah, Department of Political Science, Brooklyn College, 2900 Bedford Avenue, Brooklyn, NY 11210. E-mail: [email protected]; Dean Spade, Williams Institute, UCLA Law School, Box 951476, Los Angeles, CA 90095. E-mail: [email protected]

Sexuality Research and Social Policy: Journal of NSRC, Vol. 4, Issue 4, pp. 1–6, electronic ISSN 1553-6610. © 2007 by the National Sexuality Research Center. All rights reserved. Please direct all requests for permissions to photocopy or reproduce article content through the University of California Press’s Rights and Permissions website, http://www.ucpressjournals.com/ reprintInfo.asp 1 SEXUALITY RESEARCH & SOCIAL POLICY Journal of NSRC

whose gender identity or gender expression is not tradi- researchers, as advocates, and as researcher-advocates tionally associated with their birth should not be to understand this conflict between expert discourses and denied any rights or resources because of that difference, human rights claims. For advocates, research is abso- and (b) one’s gender identity (not one’s birth sex) deter- lutely essential, but only for the pragmatic necessity of nar- mines one’s legal gender. These principles were first enun- rating trans identities and practices in the most intelligible ciated in early versions of the International Bill of Gender and legitimating discourse possible. For example, advo- Rights in 1991 (Frye, 2006) and have since been included cates have reached the point where they are invoking the in the on the Application of authority of medical experts to demedicalize regulations International Human Rights Law in Relation to Sexual governing trans identities (Currah & Moore, 2007)—but Orientation and Gender Identity (2007), the new inter- in the process, for strategic effect, litigators and policy advo- national standard for discourse on and cates often cite data and research based on assumptions gender identity rights. with which they fundamentally disagree (Levi, 2006; From the perspective of transgender rights advo- Spade, 2003). cates who are challenging unjust laws or policies—in Perhaps the most basic difference between the goals meetings with legislators; in litigation before the courts; of advocates and researchers centers on disagreements in policy discussions with government officials; in nego- over theories of gender. In a system governed by the logic tiations with insurers, employers, and social service of universality (with repeatable, verifiable results), providers—merely enunciating these principles should researchers in the natural and social sciences seek to dis- be sufficient. Ideally, regarding transgender issues, meet- cover a unified totalizing truth, one that fits all the many ings should be no more than 5 minutes long, lawyers’ pieces—body parts, normalizing ideologies, medical tech- briefs should be limited to two or three pages, and the nologies, the role of socialization, and biological ety- validation of experts should never be called for. But, of mologies—into the grand jigsaw puzzle that will course, we do not find ourselves in this world of shoulds: ultimately reveal the answer to the riddle of gender. The Simply articulating a human rights claim based on gen- aggregate approach of trans activists, however, centers on der identity or gender expression will have little, if any, the idea of an agnostic gender pluralism and does not seek short-term impact. In challenging the commonsense to discover the perfect theory (Currah, 2003). In fact, any knowledge and social and legal systems that currently unified theory purporting to describe the so-called right structure gender arrangements, transgender rights advo- relationship between body parts, gender identities, and cates are in desperate need of expert knowledge to back gender expressions would entail the imposition of a new up trans people’s demands. The transgender community hegemonic norm—one that would not be true to many needs valid, reliable social science research to provide people’s experience of gender and that would exclude evidence, as well as experts who will testify, legitimate many from the opportunities that legal gender recogni- advocates’ claims, or submit affidavits. Without these tion brings. For the trans movement in the United States, supports, it becomes impossible to topple the existing there is no overarching desire to make the many com- supposed expertise of bureaucrats who can stand beside munities, practices, and identities fit under any unified the fact that discriminatory policies must be right sim- theory: All of the constituent (and often discordant) ele- ply because of their ubiquity. ments of this movement add up to nothing greater than The fundamental goal of researchers distanced from the sum of the parts. their subjects, however, is not to advance the rights claims To be specific, transgender rights advocates and pol- of any particular group but to determine observable, mea- icy reformers must insist that social scientific research surable truths about what they are studying—in this case, overcome assumptions about sex and gender that, for the sexed body; gender identity, expression, and role; and example, assign transgender people to the wrong legal the (inter)relationships of these factors. Moreover, always sex, suggest that transgender people cannot be good par- lurking in the background is the distinct possibility that ents, categorize gender nonconforming youth only as the research will generate results that undermine claims problems to be solved, and provide rationales for denying for transgender rights. transgender people access to health care. In short, trans- In fact, a real incommensurability exists between the gender rights advocates have to rely on the kind of research normative human rights framework that is the founda- that proves that our gender difference does not make us tion of transgender rights advocacy and the descriptive less than human. In most contexts of making claims for social science paradigm that plays such an important equal treatment, then, we transgender rights advocates role in transgender rights advocacy. It is vital for us as have found ourselves in the uncomfortable position of

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having to deploy research proving that our existence is doubt, one that grabs people’s attention when they are first legitimate, not a pathological aberration. learning about transgender issues. But the real impact of That brings us back to the main point of our against transgender individuals is to be introduction—to introduce some members of the new found in the cracks and crevices of the modern regulatory generation of researcher-advocates (or advocate- state, in the agency rules administered by particular state researchers) whose work we are delighted to sample in actors that exclude trans people. Significantly, low-income this, the first of two special issues of Sexuality Research people have much more contact with particular disci- & Social Policy: Journal of NSRC devoted to transgender plinary arms of the state—social service providers, research. Unlike the traditional research paradigm, which Medicaid systems, and the criminal justice system, for has been defined by the distance between the researcher example—than do other individuals. Because these state and his or her subjects, today’s new crop of promising actors also define and regulate gender, and distribute ben- transgender researchers are firmly located within the pop- efits based on gender, the more contact people have with ulations they study—either as members or as allies with these state agencies, the more they are pressured—or long histories of involvement. In this new paradigm, forced, in the case of those in the criminal justice system probably best described as participatory action research, and residential settings for youth—to comply with tradi- individuals situated within the community marshal the tional gender norms (Spade, 2006). Thus, participatory resources of the sciences and social sciences to serve policy research and advocacy is of vital importance to the the needs of that community. In the field of social most vulnerable transgender communities—youth, peo- epidemiology—which is widely recognized as the birth- ple of color, and low-income populations. It is relatively place of participatory action research—individuals affected easy to find out that the ban on sex discrimination in Title by toxic waste, for example, use the tools of science to VII of the Civil Rights Act of 1964 has generally not been measure their own demographics, self-collect health data, found to apply to transgender people; it is much more dif- and use their social contacts to establish the truth about ficult and labor intensive—not to mention risky—to what is happening in their communities and to their bod- research administrative rules and policies and their appli- ies. In this way, the subjects become the experts. We are not cation to vulnerable communities. implying that real differences of power do not still exist in A first-rate example of just the sort of research that relationships between the new generation of trans the transgender community so desperately needs is researchers and trans people, but we can see that much of “Unraveling Injustice: Race and Class Impact of Medicaid the gap so prevalent in traditional research has been closed. Exclusions of Transition-Related Health Care for With this new approach, what gets identified as Transgender People,” a report by Pooja S. Gehi and Gabriel research questions, research subjects, and hypotheses Arkles (2007). Their research is firmly grounded in the dramatically shifts from traditional research designs. data—the lived experiences of transgender people; it cen- Taking transgender lives as the starting point, the ters on the needs of this population; and it concludes with research question is no longer the riddle of gender or the sound proposals for policy reform based on the authors’ particular gender configurations of transgender individ- rigorous analyses. Gehi and Arkles, two attorneys for the uals; instead, the problem to be solved becomes the social Sylvia Rivera Law Project, highlight a conundrum facing and legal arrangements that structure gender noncon- transgender people: States almost always require trans- formity as problematic in the first place. Significantly, as gender individuals to modify their bodies before their much of the work in this special issue demonstrates, gender will be legally recognized. But most Medicaid pro- when one focuses on the lived experiences of transgen- grams, which are administered at the state level, do not der people and firmly locates in the research the partic- cover the psychotherapy, hormone therapies, surgeries, ular social locations transgender people inhabit, abstract and other treatments required for this all-important legal discussions of gender tend to fall by the wayside. Instead, recognition. As the authors make very clear, this legal pressing questions of social justice, such as the disparate catch-22 disproportionately affects low-income trans peo- impacts of race and class, are more likely to be brought ple. Gehi and Arkles provide a wealth of data about the out in the analysis. effects, often interrelated, of Medicaid exclusions for This grounded approach also shifts the spotlight transition-related care. For example, engaging in away from very broad accounts of the universal injustices so they can pay for gender-affirming health care causes experienced by transgender people, such as lack of inclu- many trans people to fall into the maw of the criminal jus- sion in human rights laws. That is the type of issue most tice system; once arrested, trans prisoners whose identi- immediately and easily legible to the mainstream, no fication documents do not reflect their gender end up

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housed with the wrong gender in prison, subjecting them is “reasonable, economical, and to harassment and violence, including sexual assault. medically necessary” (p. 86). Once out of prison, with a criminal record and the same The area of transgender health, however, far exceeds inaccurate identity documents in hand, transgender peo- the issue of coverage for gender-affirming surgery and hor- ple’s ability to find employment, travel, or gain access to mone therapy. Indeed, research on health disparities is of social services is massively curtailed, resulting in signifi- vital importance for trans communities. As Sel Julian cantly higher poverty levels. The double bind facing low- Hwahng and Larry Nuttbrock (2007) point out in their income transgender people is even more vexing, as Gehi article, “Sex Workers, Fem Queens, and Cross-Dressers: and Arkles point out, because the very same medical Differential Marginalizations and HIV Vulnerabilities model that states use to define gender legally—that is, Among Three Ethnocultural Male-to- Transgender those who transition with the aid of surgery and hor- Communities in ,” past and present research mones are more likely to have their gender recognized has indicated that some groups of transgender women whereas those who do not will not get identity documents have “extremely high HIV seroprevalence” (p. 37). accurately reflecting their gender—is also deployed to Although this fact is now regularly invoked in health advo- deny Medicaid coverage for transition-related health care. cacy discussions, much more research is needed to iden- Medicaid programs are not the only ones that tify precisely which trans populations are the most exclude coverage for gender-affirming surgeries and hor- vulnerable. If local, state, and federal government mone therapies. In “Transgender Health Benefits: resources are going to be deployed to alleviate these dis- Collateral Damage in the Resolution of the National parities—and HIV/AIDS is the one area in which federal Health Care Financing Dilemma,” R. Nick Gorton (2007) resources can potentially be used to benefit transgender turns our attention to questions of private health insur- populations under the current federal administration—it ance. The vast majority of private health insurers explic- is essential that researchers know exactly who needs help. itly exclude transgender care; Gorton, a practicing Hwahng and Nuttbrock’s important work does just this: physician, sees challenging those exclusions now as essen- Their study connects “HIV risk behaviors within a nexus tial to ensuring that transgender health care is included of racial, ethnic, cultural, social, and economic factors” in the universal health insurance system the United States (p. 36). To do so, the authors map out and compare seems to be moving toward. Gorton reminds us that law- three distinct “ethnocultural communities” (p. 36): (a) makers explicitly targeted trans people for exclusion from low-income African American/Black and Latina(o) House health care coverage when the Americans With Ball community members; (b) low-income, often undoc- Disabilities Act was passed in 1990. At that time, Senator umented immigrant Asian sex workers; and (c) middle- Jesse Helms ensured that , transsexualism, class White cross-dressers. Hwahng and Nuttbrock and most gender identity disorders were listed as exclu- demonstrate that the general category transgender and its sions to the definition of disability. Anticipating the subcategory, the monolithic and abstract grouping of male- “pitched political battle” (p. 83) that will surround the to-female transgender people, are too detached from the implementation of universal health insurance, Gorton very disparate communities they purport to represent to be warns that transgender people may again be used as useful for health disparities research. scapegoats—this time, by opponents of universal health The final two articles in Part 1 of this special issue take insurance. These forces will, Gorton suggests, be likely to a broader look at the new social movement surrounding cast any plan that includes coverage for gender-affirming transgender issues. In “Seeking Refuge Under the health care as too liberal. Because even “scientific evi- Umbrella: Inclusion, Exclusion, and Organizing Within dence of safety and efficacy are often trumped by politi- the Category Transgender,” Megan Davidson (2007) uses cal unpopularity” (p. 85), Gorton argues that trans debates about the meaning of the term transgender as the advocates need to work now to ensure that the general starting point for her analysis of the visions of social jus- public, medical providers, and private insurers all under- tice held by some of the movement’s central actors. In con- stand that transgender health care is medically necessary. ducting this ethnographic research, the author interviewed Gorton argues against those who suggest that to fight 101 trans activists of all kinds from throughout the United for trans inclusion in private insurance plans is to par- States— separatists, activists, gender- ticipate in an oppressive system that excludes the unin- queer people, and trans advocates who self-identify as sured. Instead, he maintains, when debates about what mainstream—and asked them, among other things, how should be covered in future universal health insurance they defined the term transgender. Her analysis—which plans do take place, this advocacy will demonstrate that is strongly supported by the depth and breadth of her

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subject pool, the quality of her interviews, and her deep We are also deeply indebted to Ingrid Wynden for her familiarity with the trans movement in the United States— exceptionally fine editorial work on these articles. demonstrates that “the specific goals and visions of pol- References icy reform and social change forwarded by trans activists are conceptualized in and through differing visions of the Allen, M. P. (2007). Momentum: A photo essay of the category transgender” (p. 79). Davidson’s research indi- transgender community in the United States over cates that under what she calls the transgender umbrella, 30 years, 1978–2007. Sexuality Research & Social real, ongoing fractures over the politics of gender are Policy: Journal of NSRC, 4(4), 92–105. occurring—disagreements about whether to reinforce or Billings, D. B., & Urban, T. (1982). The socio-medical con- dismantle the , whether to reject or follow struction of transsexualism: An interpretation and the medical model of transsexuality, and whether to envi- critique. Social Problems, 29, 266–282. sion radical or assimilationist political goals. Like the Currah, P. (2003). The transgender rights imaginary. The work of Hwahng and Nuttbrock (2007), Davidson’s Georgetown Journal of Gender and the Law, 4, research does much to highlight “differences that are often 721–738. elided in public consciousness by the category transgen- Currah, P., & Moore, L. J. (2007, August). Regulating der” (p. 79). permanence: Birth certificate policy reform, When photographer Mariette Pathy Allen (2007) transgender activism, and medical expertise. first encountered transgender people in 1978, the word Paper presented at the annual meeting of the transgender was not yet in circulation. That first Society for the Study of Social Problems, New encounter—in which, she says, “I had the feeling that I was York, NY. looking at neither a man nor a woman but at the essence Davidson, M. (2007). Seeking refuge under the umbrella: of a human being” (p. 92)—captivated Allen so much that Inclusion, exclusion, and organizing within the cat- she has been photographing transgender individuals egory transgender. Sexuality Research & Social almost continually ever since. In the last 30 years, no Policy: Journal of NSRC, 4(4), 60–80. observer has visually documented trans people to the Fausto-Sterling, A. (2000). Sexing the body: Gender pol- extent that Allen has: From images of public protests to itics and the construction of sexuality. New York: more intimate shots of individuals, from photos of con- Basic Books. ferences to commemoratives of vigils, she has captured Frye, P. (2006). Preface to the International Bill of Gender many key historical moments for the transgender com- Rights. In P. Currah, R. M. Juang, & S. P. Minter (Eds.), munity. In presenting this material, we wanted not only Transgender rights (pp. 327–328). Minneapolis: to showcase some of Allen’s huge collection of compelling University of Minnesota Press. images but also to include her own narrative about her Gehi, P. S., & Arkles, G. (2007). Unraveling injustice: exploration of trans culture. Her photographic artifacts Race and class impact of Medicaid exclusions of represent a sustained relationship between the researcher- transition-related health care for transgender people. artist and the communities she has chosen to explore. Sexuality Research & Social Policy: Journal of NSRC, Because of the large number of relevant articles we 4(4), 7–35. wanted to include, this special issue of Sexuality Research Gorton, R. N. (2007). Transgender health benefits: & Social Policy: Journal of NSRC has been divided into Collateral damage in the resolution of the national two parts. The second installment of The State We’re In: health care financing dilemma. Sexuality Research Locations of Coercion and Resistance in Trans Policy & Social Policy: Journal of NSRC, 4(4), 81–91. will appear in Volume 5, Number 1, to be published in Halberstam, J. (1998). Female masculinity. Durham, NC: March 2008. Duke University Press. Hausman, B. L. (1995). Changing sex: Transsexualism, Acknowledgments technology, and the idea of gender. Durham, NC: We would like to express our thanks to Terry Stein, Duke University Press. managing editor of Sexuality Research & Social Policy: Hwahng, S. J., & Nuttbrock, L. (2007). Sex workers, fem Journal of NSRC, for all his work on these two special queens, and cross-dressers: Differential marginal- issues of The State We’re In: Locations of Coercion and izations and HIV vulnerabilities among three ethno- Resistance in Trans Policy. We are deeply grateful for his cultural male-to-female transgender communities diligence, his patience, and his unflagging commitment to in New York City. Sexuality Research & Social Policy: shepherding this material through the publishing process. Journal of NSRC, 4(4), 36–59.

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Levi, J. L. (2006). Clothes don’t make the man (or (Eds.), Bodyguards: The cultural politics woman), but gender identity might. Columbia of gender ambiguity (pp. 280–304). New York: Journal of Gender and Law, 15, 90–123. Routledge. Raymond, J. (1979). The transsexual empire. New York: Stryker, S. (1998). The transgender issue: An introduc- Teachers College Press. tion. GLQ: A Journal of and Studies, 4, Spade, D. (2003). Resisting medicine, re/modeling gen- 145–158. der. Berkeley Women’s Law Journal, 18, 15–37. Title VII, Civil Rights Act of 1964, 42 U.S.C., §2000e [1] Spade, D. (2006). Compliance is gendered: Struggling for et seq. gender self-determination in a hostile economy. In Yogyakarta Principles on the Application of International P. Currah, R. M. Juang, & S. P. Minter (Eds.), Human Rights Law in Relation to Sexual Transgender rights (pp. 217–241). Minneapolis: Orientation and Gender Identity. (2007). Retrieved University of Minnesota Press. September 3, 2007, from the Yogyakarta Principles Stone, S. (1991). The “empire” strikes back: A post- website: http://www.yogyakartaprinciples.org/ transsexual manifesto. In P. Epstein & K. Straub docs/File/Yogyakarta_Principles_EN.pdf

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