SUNY series in Queer Politics and Cultures

Transgressive Bodies, Governmentality, and the Limits of Trans Rights

Courtenay W. Daum

• Publisher: SUNY Press
• Year: 2020
• ISBN:
  9781438478883
• Topic: Politics & International Relations
• Subtopic: Civil Rights in Politics
• Index: Politics & International Relations

While the growing attention to trans rights and the development of trans-specific interest groups suggest that the time is right for a trans rights movement akin to prior civil rights movements, The Politics of Right Sex explores the limitations of rights-based mobilization and litigation for advancing the interests of trans communities. Synthesizing critical theory, transgender studies, and extant law and society research, Courtenay W. Daum argues that trans individuals, particularly those situated at the intersection of gender, race, class, and immigration status, are regulated by myriad forces of governmentality that work to maintain the sex and gender binaries and associated power hierarchies. Because many informal practices and norms are located beyond the reach of civil rights laws, a trans politics of rights may produce some modest legal and legislative reforms but will not eliminate the disciplinary forces that work to subject trans individuals. It will also privilege those who are able to conform with dominant gender norms at the expense of the interests of those individuals who are gender nonconforming, gender queer, trans people of color, and others unable or unwilling to embrace a transnormative presentation of self and/or lifestyle. In order to disrupt the dominant discourse and hierarchical power arrangements in pursuit of collective liberation for all as opposed to rights for some, The Politics of Right Sex advocates for a more confrontational approach that directly engages and challenges the hegemonic power structures that govern and discipline trans individuals.

Part One

Transgressive Bodies

Chapter 1

Binary Identities and the Construction of Privileged versus Transgressive Bodies

Introduction

Power and privilege are allocated to those “bodies that matter” based on various physical traits including race, sex, sexual orientation, and the intersectional dynamics of these attributes.1 As such, one of the biggest obstacles for trans rights activists and allies is persuading the public, legislators, and the courts that all trans bodies—as opposed to promulgating a transnormative politics of rights that privileges white transgender bodies—matter and are worthy of legal protection. Yet, as this chapter endeavors to make clear, U.S. Supreme Court justices historically have preferred the parsimony of binary categories of identity and regularly issue decisions that create and/or reify dichotomous groups of people. More often than not, differences are operationalized as binaries that work in effect to privilege one group at the expense of another (e.g., male/female, white/not white, gay/heterosexual). While these dichotomies are social constructs, they have been politically and legally operationalized as immutable characteristics that effectively reify power differentials in American society. Yet, this either/or approach to American civil rights jurisprudence is distinctly anti-intersectional and forces individuals to locate themselves in socially constructed diametrically opposed categories of identity—one is either Black or white, heterosexual or gay, male or female—which is not only an inaccurate description of many individuals’ identities but works as a powerful privileging mechanism for some bodies as well.

At the same time, however, the Black, women’s, and gay rights movements often have seen their greatest successes when they are able to cast questions about civil rights as debates about the legitimacy of state and/or state-sanctioned discrimination between two groups of individuals where one group is targeted for differential treatment on the basis of a single and shared immutable characteristic. Most recently, the gay rights movement’s arguments that gays and lesbians have a same-sex sexual orientation not a sexual preference, and that consequently states cannot deny same-sex couples access to the civil institution of marriage that is open to opposite-sex couples, proved to be a persuasive political and legal argument culminating in the U.S. Supreme Court’s decision in Obergefell v. Hodges (576 U.S. ___ [2015]) declaring state prohibitions on same-sex marriages unconstitutional. The majority opinion, however, validated the binary operationalization of sexual orientation that consistently has informed the justices’ gay rights jurisprudence. In this instance, a majority of the justices determined that it is unconstitutional to deny same-sex couples access to the social, legal and economic benefits that accrue to married heterosexual couples, thereby following a pattern in which major civil rights victories validate and perpetuate the binary construction of identities.

This chapter explores the role that the courts play in the sociolegal construction of binary identities, and how the white/not-white, heterosexual/gay, and male/female binaries effectively create and perpetuate hierarchical categories of identity in relation to one another. This oversimplification of the complexities and nuances of individuals’ identities works to privilege, marginalize, and erase different individuals based on whether or not they can be located within these binaries and, if so, where they are situated. These norms prove to be especially problematic for individuals located at the intersection of various categories of identity such as genderqueer and trans people of color as well as those with fluid sexual and gender identities.

As such, the analysis in this chapter begins with a discussion of how traditional rights jurisprudence is commensurate with the sociolegal construction of binary identities as a privileging mechanism in the contemporary United States. Then, specific attention is focused on the U.S. Supreme Court’s role in the social construction of whiteness and the myriad ways in which the white/not-white dichotomy works to empower white individuals by designating nonwhite individuals as transgressive Others. Next, a review of the Supreme Court’s validation of sexual orientation as both a binary and an immutable characteristic (e.g., gays and lesbians are “born that way”) demonstrates how this jurisprudence limits the legibility of those bodies that are not easily located in the gay/heterosexual binary. Finally, the sociolegal construction of the male/female binary is examined in depth because this dichotomy works in myriad ways to restrict the legibility of trans bodies. Notably, the current trans rights litigation strategy, which is premised on situating discrimination against trans individuals in employment and education in the existing prohibitions on sex discrimination in Title VII of the 1964 Civil Rights Act and Title IX, risks reifying the sex binary in problematic ways by privileging those who can “pass” versus those who are marked as gender nonconforming members of their sex as assigned at birth. Recognizing the binary operationalization of immutable categories of identity as a successful and viable tactic in civil rights litigation suggests that a trans politics of rights is likely to be predicated on the sociolegal construction of a gender binary (cisgender/transgender) and the demand that an individual’s right to transition to their right sex be legally validated. Yet, as the analyses below demonstrate, binary categories of identity are highly problematic because they are inaccurate and simultaneously work to mark some bodies as legible and privileged and other as illegible and transgressive.

The Sociolegal Construction of Binary Identities in the United States

Social and legal constructions of binary identities operate as tools of social control that privilege those “bodies that matter.”2 The creation and reification of binary identities may lend parsimony to legal proceedings, but simultaneously they work to maintain the power of privileged bodies in myriad ways because dichotomous identities help to “divide and rule” and mitigate the threat that a unified populace poses to the oppressors’ hegemony.3 Furthermore, the binary construction of identities distinguishes among those who are unmarked and have their identities universalized and those who are marked and find that their identities are particularized:

The difference between self-abstraction and a body’s positivity is more than a difference in what has officially been made available to men and to women, for example. It is a difference in the cultural/symbolic definitions of masculinity and femininity. Self-abstraction from male bodies confirms masculinity. Self-abstraction from female bodies denies femininity. The bourgeois public sphere is a frame of reference in which it is supposed that all particularities have the same status as mere particularity. But the ability to establish that frame of reference is a feature of some particularities. Neither in gender nor in race nor in class nor in sexualities is it possible to treat different particulars as having merely paratactic, or serial, difference. Differences in such realms already come coded as the difference between the unmarked and the marked, the universalizable and the particular. … The bourgeois public sphere has been structured from the outset by a logic of abstraction that provides a privilege for unmarked identities: the male, the white, the middle class, the normal.4

In this way, the privileges that accrue to unmarked identities are not correlated with identity whereas the costs that are imposed on marked bodies are understood to reflect their particularities and abnormalities. These distinctions insulate the beneficiaries of the binary construction of identity from interrogation within and by the public as “[t]he powerful are in this way discursively normalized, naturalized, while the dominated appear as mutants, disabled.”5

Similarly, consistent with the idea that “the master’s tools will never dismantle the master’s house,” a review of landmark litigation in the areas of Black, gay, and women’s civil rights demonstrates how the legacies of racism, homophobia, and sexism are reproduced when those bodies that matter are the same individuals tasked with managing challenges to the dominant norms that validate their own power and privileges.6 When courts validate social constructs as immutable characteristics, these innate physical markers sanction the perpetuation of stereotypes that are then used to further substantiate the intractable differences between identity groups. The mutually constitutive relationship among legal meaning and individual and social identities facilitates processes of governmentality and makes it exceedingly difficult for transgressive bodies to challenge governing norms.7

Successful civil rights litigation strategies historically have been predicated on socially constructed binaries—whites and Blacks, whites and nonwhites, men and women, gays and heterosexuals, etc.—that are then validated as real constructs via legal decisions and legislation. In this way, binaries that are themselves social constructs are validated as legal categories that work to privilege some at the expense of others. As such, it seems evident that those with power are invested in the maintenance of binary identities predicated on immutable characteristics and the legal validation of these binaries, and this is enhanced when “the dominators try to present themselves as saviors of the women and men they dehumanize and divide.”8

Yet, it is precisely because these legal victories are significant, end de jure discrimination, and mandate the expansion of rights under the law—e.g., ending segregation in education in Brown v. Board of Education (347 U.S. 483 [1954]), declaring prohibitions on same-sex sodomy unconstitutional in Lawrence v. Texas (539 U.S. 558 [2003]), and recognizing marriage equality in Obergefell v. Hodges (576 U.S. ___ [2015])—that it is difficult to criticize these cases. These legal victories are exalted as validation that the state is capable of eradicating past wrongs and/or expanding the realm of rights to include new identities and groups while simultaneously eliding the myriad forces of governmentality that continue to operate on marginalized and intersectionally subjected populations after these landmark cases are decided. Furthermore, these binary categorical distinctions are understood as efficacious in legal decisions because the law is often operationalized as a mechanism for neatly distinguishing between right and wrong, criminals and victims, and so on. Yet, the courts’ emphases on immutable characteristics and dependence on binary categories are not innate to the legal system or happenstance. These norms are instrumental in maintaining a system that identifies some as “beings for others.”9 An alternative approach would seek to validate individuals as “beings for themselves,” but this requires challenging the system itself because

the oppressed are not “marginals,” are not people living “outside” society. They have always been “inside”—inside the structure which made them “beings for others.” The solution is not to “integrate” them into the structure of oppression, but to transform that structure so that they can become “beings for themselves.” Such transformation, of course, would undermine the oppressors’ purposes.10

As such, any attempt to dismantle the governing binaries is likely to meet with systemic resistance.

Before one can entertain how making the case for the fluidity of gender and a spectrum of gender identities challenges the structures of oppression and has the potential to enable oppressed individuals the freedom to be “beings for themselves,” it is first necessary to examine the structures that must be transformed in pursuit of change. In particular, the courts’ reliance on immutable characteristics and binary categories of identity has had significant ramifications that work in effect to erase the identities of individuals who do not fit into binary categories, and creates a politics of division that reifies the power and privilege of those in the dominant binary identity categories at the expense of others. In this way, these legal tools produce and regulate persons and populations.11 As such, the success of political and legal arguments predicated on binary identities reflects the challenges and limitations of advancing civil rights claims in the American political and legal systems. While the Black, gay, and women’s rights movements have achieved great success in the courts, the legal constructions of race, sexual orientation, and sex come with costs, and the same will be true if civil rights advancements for trans individuals are predicated on a binary construction of gender identity.

Race: The Construction of Whiteness

Throughout U.S. history it has been “critical to define who was ‘white’ and on what grounds.”12 In Ian Haney López’s White by Law (2006), he examines the role that the courts have played in the construction of race throughout U.S. history. López explains:

First, the courts constructed the bounds of Whiteness by deciding on a case-by-case basis who was not White. Though the prerequisite courts were charged with defining the term “white person,” they did not do so by referring to a freestanding notion of Whiteness. No court offered a complete typology listing the characteristics of Whiteness against which to compare the petitioner. Instead, the courts defined “white” through a process of negation, systematically identifying who was non-White. … In this relational system, the prerequisite cases show that Whites are those not constructed as non-White.13

López proceeds to identify the courts’ assignment of value to these two categories—whites are superior and nonwhites are inferior—as their second major contribution to the construction of race through law.14 The legal construction of race validates and perpetuates the social construction of a binary racial identity whereby whites are privileged and recognized as legitimate bodies and nonwhites are designated as inferior marginalized transgressive bodies.

This two-step process by which courts (1) decide who is not white, and (2) assign value to the categories of white and nonwhite is evidenced in the following quote from the U.S. Supreme Court’s decision in Plessy v. Ferguson (163 U.S. 537 [1896]):

Plessy, being a passenger between two stations within the State of Louisiana, was assigned by officers of the company...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Preface
• Acknowledgments
• Introduction
• Part One: Transgressive Bodies
• Part Two: Governmentality
• Part Three: The Limits of Trans Rights
• Notes
• Works Cited
• Index
• Back Cover