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Using.humor and education to make the world more safe and joyful for transgender people.
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EXPANDING GENDER AND EXPANDING THE LAW: TOWARD A SOCIAL AND LEGAL CONCEPTUALIZATION OF GENDER THAT IS MORE INCLUSIVE OF TRANSGENDER PEOPLE D. Vade
look for the stars below
People are different from each other.
Introduction
The law paints a specific picture of transgender people, a picture in which all transgender people look the same. In the law, most transgender people are male to female (MTF). [FN4] And most MTFs in the law are women stuck in men's bodies, are very feminine heterosexual women, and want every possible surgical intervention. [FN5] Certainly, there *256 are transgender people who fit the above description, but there are also many transgender people who fit only part or none of the above. I felt invisible. This invisibility has pros and cons. If one is reflected by the dominant discourse, one is validated. If one is reflected by the dominant discourse, one may also be co-opted. But, if one is not recognized as existing by the law, one is not protected by the law. As long as the law sees only a small part of the transgender communities, many transgender people are left without legal recourse. When courts only recognize as 'real' those transgender people who fit narrow gender stereotypes, have multiple medical interventions, and engage in heterosexual intercourse, then courts only grant custody, health benefits, and employment protections to transgender people who fit narrow gender stereotypes, have multiple medical interventions, and engage in heterosexual intercourse. Those clients of mine who do not fit the above requirements cannot make use of the legal protections. [FN6] As a legal advocate for transgender people, this is a concern I face every day. Transgender people are hurt every day. Gwen Araujo was a young transgender woman who was brutally murdered by her transphobic classmates in the San Francisco Bay Area in 2003. [FN7] And Gwen is not alone. Each month a transgender person is murdered simply for being themselves. [FN8] Most transgender people have been or will be the target of a *257 hate crime in their lives. [FN9] Calling the police is not always an effective option. In San Francisco, approximately 50% percent of the violence against transgender people is perpetrated by the police. [FN10] Transgender people are discriminated against in many areas of life, from employment and housing, to health care and custody rights. Even in San Francisco, one of the most transgender friendly cities, over 50% of transgender people have experienced employment discrimination. [FN11] *258 One client of mine worked at a local establishment for 15 years, got promotions and raises, and built her entire life around her work. Yet, the day she told her employer that she is transgender, she was fired. Unfortunately, this is not an uncommon story. [FN12] Discrimination in employment makes housing and health care difficult. In San Francisco, 47% of male to female transgender people, and 20% of female to male transgender people have no housing or only unstable housing. [FN13] Many of my clients are denied access to homeless shelters. In San Francisco, 51% of transgender people do not have health insurance. [FN14] Even if one has health insurance, one is not guaranteed treatment. Robert Eads, a female to male transperson who developed ovarian cancer, was denied treatment by over twenty doctors and died, untreated. [FN15] *259 Transgender youth are frequently harassed at school and so lose out on their education, or their lives. A recent study found that 53% of students did not feel their school was safe for gender non-conforming boys. [FN16] California's Westminster School Board refused to enforce the state's Student Safety and Violence Prevention Act of 2000, [FN17] which protects transgender and gender non-conforming students from harassment and discrimination. [FN18] Westminster was willing to lose $40 million in state funding to violate state law by failing to protect its transgender students. [FN19] This is only a small snapshot of the difficulties that many transgender people face. Transgender people are hurt every day, and often with no legal recourse. There are only four states that explicitly protect transgender people in employment. [FN20] California is the only state in the United States that protects transgender and gender non-conforming *260 students from discrimination and harassment. [FN21] There are no laws that protect transgender people from discrimination in health care. [FN22] Courts are starting to rule for transgender people, but continue to do so in such a way that only those transgender people who fit stereotypical gender norms and want (and can afford) surgical procedures can make use of the victories. [FN23] This article examines two reasons why we are unable to transcend current discriminatory laws, policies, and social practices: a view of gender that does not recognize the existence of many transgender people, and a prevailing perception both in the legal and medical communities that there is a distinction between "gender" and "sex." In Part I, the article first describes the many different ways in which one can be transgender. Many transgender women and men defy gender stereotypes. For instance, some male-to-female transgender people are butch lesbians. Some female-to-male transgender people like to cook and bake. And there are many transgender people who do not identify as either female or male, but as a third or other gender, such trans or boy-girl, just to name a few. [FN24] Some transgender people choose to alter their bodies medically, and some do not. Some transgender people want to alter their genitalia, and some do not. Some transgender people are *261 straight, some are gay, some are bisexual, some are queer. [FN25] The ways to be transgender are endless. Part I next suggests a non-linear view of gender. Often, when we get past the binary gender system, the notion that there are only two genders, female and male, we do so by seeing gender as a spectrum or line running from female to male. [FN26] A conceptualization of gender that runs from female to male is limiting because it does not leave space for more complex genders. For instance, I have met many FTMs who are less masculine than many butch women. Would the FTM fall more towards the male end of the spectrum because the FTM identifies as male? Would the butch woman fall more towards the male end of the spectrum because she is in fact more masculine? This linear ordering breaks down quickly. I suggest a non-linear alternative conceptualization, which I call the gender galaxy. The gender galaxy is a three-dimensional non-linear space in which every gender has a location that may or may not be fixed. For instance, butch woman is one particular gender location. Feminine FTM is another gender location. These are two different valid gender locations that are not linearly related. In Part II, the article argues that the sex-gender distinction is not part of the new conceptualization of gender, the gender galaxy. Within the sex-gender distinction, sex is seen as physiological and anatomical, and gender is seen as cultural and social. Gender is the cultural overlay onto a scientific and objective sex. For instance, Mary Anne C. Case defines sex as "the anatomical and physiological distinctions between women and men" and gender as "the cultural overlay on those anatomical and physiological distinctions." [FN27] Similarly, Francisco Valdes defines *262 sex as the "physical attributes of humans" and gender as the "cultural dimensions derived from and determined by sex." [FN28] Under this paradigm, a person's genital configuration is sex, and a person's presentation of themselves to the world is gender. One of the most harmful underlying concepts that courts use is the distinction between sex and gender. [FN29] If we see sex as biology and gender as a social construct, then we give sex more import and make it more real. If sex, that which we are assigned at birth by doctors, [FN30] is seen as more real, then transgender people's self-identification, which is different from an assignment at birth, is necessarily seen as less real. This distinction allows courts to see the transgender person's birth-assigned sex as an ultimate truth that most likely cannot be overcome (and to overcome it requires the testimony of a whole host of medical experts). [FN31] Halting the use of this distinction would do much to assure that more *263 transgender people are protected by the courts, particularly transgender people who cannot afford to or choose not to enter the medical system, and so do not have a team of doctors available to testify on their behalf. The sex-gender distinction also reinforces an environment that places transgender people in physical danger. A significant amount of violence against transgender people occurs because the perpetrator feels that the transgender person has deceived them. [FN32] The sex-gender distinction implies that transgender people are not who they say they are, that their true, objective gender is the one they were assigned at birth. Thus, the sex-gender distinction plays into a belief that transgender people are deceitful, a belief that can cost transgender people their lives. In Part III, after a brief overview of transgender law, the article shows how much of current law and policy is, at best, inclusive and protective of only a portion of the transgender communities. Historically, the courts ruled virtually unanimously against transgender people, and did so in extraordinarily insulting ways. [FN33] In the few instances when a transgender person won in court, it was a transgender person who fit a narrow view of what it means to be transgender. [FN34] There have been advances in the last few years. Despite these advances, many current courts *264 use the same limiting standards from thirty years ago, standards that rely on the sex-gender distinction. [FN35] This article urges litigators and policy makers to refrain from using conceptualizations that are based on the sex-gender distinction. The article ends with additional suggestions of how to be more inclusive and protective of the gender galaxy in order to ensure that every person's self-identified gender is respected, that every person can express their gender freely, from a fierce feminine transgender woman, a butch lesbian transgender woman, a non-transgender female soccer star, a proudly not-masculine transgender man, a flamey gay man, to a person whose gender goes far beyond the female-male binary.
I. A Conceptualization of Gender that Is Inclusive and Respectful of A. A Description of Transgender Communities
A. The Gender Galaxy In order to be protective of transgender people, we have to know who transgender people are. This article begins to describe the infinite gender diversity within the transgender communities. [FN36] Transgender people span all communities, cultures, races, ages, sexual orientations, and genders. This statement is fairly self-evident and clear, except perhaps the last part of the sentence: Transgender people have all genders. 1. Gender Diversity Transgender people have all genders. Some transgender people are male; some transgender people are female. Among non-transgender people, there are feminine women, masculine women, androgynous women, feminine men, androgynous men, masculine men, to name just a few. Among transgender people as well, there are feminine women, masculine women, androgynous women, feminine men, androgynous men, masculine men, and many more. Some FTMs do drag in slinky dresses, wear sparkly clothes while hiking in the woods, and host nail polish parties. Some MTFs identify as butch dykes, play soccer, and cringe at having to wear a skirt. [FN37] There is infinite variation in the world. We are all limited by imposing socialized binary gender norms on our complex real life experiences. There are infinitely different women and infinitely different men. [FN38] *266 And there are those who are neither. Some transgender people identify as trans, tranny, trannyboy, trannygirl, transsexual, transgender, shinjuku boy, boi, grrl, boy-girl, girl-boy-girl, papi, third gender, fourth gender, no gender, bi-spirit, butch, dyke-fag, fairy, elf girl, glitterboy, transman, transwoman--just to name a few. [FN39] On a San Francisco Human Rights Commission Survey one person described their gender as "[h]ormonally enhanced, pre-op, trans, genderqueer, butch-dyke with recurring femme moments! I'm just your average boy-girl-boy, really." [FN40] In conversations and community discussions, [FN41] there are transgender people who identify as both FTM and dyke. Some see themselves as combining aspects of female and male. Some see themselves as falling between female and male. Some see themselves as falling completely outside of the binary gender system. Some who do not identify as strictly female or strictly male identify as "genderqueer." [FN42] Some do not identify with that term. [FN43]
Author Leslie Feinberg "faces almost insurmountable difficulty when instructed to check an 'F' or an 'M' box on identification papers," and refers to hirself as sie. [FN45] 2. Change and Fluidity Some transgender people knew their true gender from the day they were born. Some transgender people realize their genders later in life, when they first meet another transgender person, through reading about transgender people, or through a series of experiences. [FN46] Just as there is no one age at which gay or bisexual or queer people recognize and acknowledge their sexual orientation, there is also no one age at which transgender people recognize and acknowledge their gender identity. Some transgender people know their gender at the age of three, some at the age of fifteen years, some at the age of eighty-five years. [FN47] Further, a recognition of one's gender identity at one point in time does not negate a different identification at a different point in time. Some transgender people have the same gender throughout their lives. Some have different genders at different times. Some FTMs identified as women, and then identified as men. Some FTMs have always identified as men. Some transgender people identify as male for part of their life, as female for another part of their life, and later again as male. [FN48] That does not mean that there was a mistake. It simply means there was change. Like so many things in life, and in fact, like every moment of life, gender can change, and it can change more than once. For some transgender people, gender identification varies frequently. Some people's gender is situational. [FN49] For instance, I identify in the "male" region of the gender galaxy, but not really as female or male. Once, a law school exercise required that students divide into groups of women and men. I looked at the side of the room with the feminine women. I looked at the side of the room with the masculine men. At that point, I strongly identified as neither female nor male. That identification was both visceral and political. I needed more space. In that gender normative space, I needed to create an opening. [FN50] In contrast, at one transgender meeting in San Francisco I was told that I was welcome only if I did not identify as female or male. Here as well, I had a visceral and political reaction. Again, I needed more space. In that space, the *268 male parts of my identity felt erased, so I needed to assert them. In that space, I identified as male. My gender is situational. Many transgender people's genders are situational. For instance, some transgender people identify both as dyke and as FTM, more dyke or more FTM depending on the situation. Some people wake up on different days with slightly different genders. For some, gender is fixed, and for some it is fluid. 3. Body Diversity In addition to the enormous variety of identifications, there is an equally impressive variety of bodies. Some women have wombs, some do not. Some men have facial hair, some do not. Some transgender women identify as one hundred percent female and never take hormones or have any surgeries. Transgender women define for themselves what it means to be female and to have a female body. Many transgender people name and reclaim their body parts. Some FTM transgender people take male hormones and have mastectomies and yet do not identify as men. Some do. Some mix and match to best express their gender. Some take hormones but have no surgery or vice versa. Some take low-doses or go on and off of hormones. Some female to male transgender men choose to become pregnant and bear and raise children. [FN51] When talking about bodies, I cannot leave out genitalia. Often when I tell people that I am transgender, the first question I am asked is: "Have you had THE surgery?" There is no such thing as THE surgery. There are many different possible types of surgeries. [FN52] Further, many *269 transgender people do not want any surgery whatsoever. For some, altering genitalia surgically is important. For others, it is critical to keep their parts just the way they are. [FN53] Some transgender people do want surgical intervention, genital or otherwise, but cannot afford it, since there is virtually no insurance coverage for transgender surgeries. [FN54] Many transgender people are excluded categorically from having health insurance [FN55] and many are unemployed or underemployed. [FN56] Further, some transgender people of color want surgical procedures and/or hormones but choose to forgo those medical interventions because to date there are no studies on the effects of hormones or transgender surgeries on people of color. [FN57] In sum, transgender people make many different choices for their bodies. Some of the choices are for gender reasons; the person chooses for themselves how best to express their gender identity physically. Some choices are for economic reasons. Some choices are because the medical system does not have adequate data on transgender procedures, *270 particularly relating to transgender people of color. [FN58] Thus, to assume that transgender people all have, want, or are able to have the same type of body is incorrect. 4. Sexual Orientations Gender identity is who one is. Sexual orientation is to whom one is attracted. [FN59] Transgender people have all sexual orientations: some transgender people are straight, some are gay, some are bisexual, and some are queer. [FN60] Yet, such a statement is problematic. As soon as we recognize that there are more than two genders, the terms "homosexual," "heterosexual," and "bisexual" no longer make sense. For instance, I am someone who identifies as somewhat male, but not completely, as mostly trans, perhaps as trannyfag. So, am I "homosexual" only if I am attracted to others who have the exact identification that I do? Am I heterosexual if I'm attracted to anyone who does not have my exact identification? The terms "homo-", "hetero-", and "bi-sexual" presume a world with only two genders. 5. Diversity of Experiences and Narratives Transgender people have different identities, bodies, levels of fluidity, sexual orientations, and ways of mixing and matching all of the above. For instance, there is no one-to-one correlation between body modification and identity. It is not necessarily those who take low doses of hormones who identify as between male and female. It is not necessarily those who take hormones who identify as transsexual. It is not necessarily those who have genital surgery who identify as 100% male or 100% female. [FN61] Some queer-identified transgender people modify their bodies, and some do not. Some transgender people who alter their bodies medically have static identities, and some do not. There is no one way to be transgender. I want to highlight this statement: there is no prototypical transgender experience. In many disciplines, including law, medicine, and psychiatry, there exists a narrative that one has to fit to be a "real" transgender person. [FN62] Only if one fits this narrative does one become a bona fide transgender person, one who can receive services and legal rights. [FN63] The narrative goes something like this: transgender men are very masculine, played with trucks when they were little, always have known from day one that they were men, want to be heterosexual married men, are men trapped in women's bodies, have hated their bodies all their lives, and most definitely want genital surgery. The same goes for transgender women, *272 substituting dolls for trucks. Transgender people are held to even higher sexist standards than are non-transgender people. Transgender people have to tell this story to their doctors to get care, and to courts and agencies to get legal rights. [FN64] But for many transgender people this story is not true, or only partially true (as described above). Further, there are endless ways both to arrive at being transgender and to be transgender. Some transgender people feel and always felt at home in their bodies. Some transgender people who alter their bodies never felt trapped in their bodies. I know many transgender people who have lived happy and productive lives before coming out as transgender. There are many different transgender experiences, as well as many different ways to conceptualize those experiences. Each person has their own narrative. Moreover, each person has several different narratives. For instance, I can describe my past in several ways. I can pick out pieces of my past in such a way that my narrative fits more or less closely with the tranny-proto-narrative. I can try to make my past be more or less continuous and consistent. Part of me is drawn to having a narrative that fits in with a standard, or is at least consistent. But that narrative would leave out parts of my life. *273 I would like to let go of the need to have a cohesive linear narrative, and the need to have just one narrative. My life is complex. All our lives are complex. I would like to see us use our narratives in ways that empower us and that allow us to freely explore, and become, ourselves. For this to become a possibility, we have to tell and share many more narratives, the complicated and the simple, and to be very careful not to reify or institutionalize any particular one.
B. A Non-Linear View of Gender
Often when people get past the myth of two genders and attempt to describe gender diversity, they paint a line and see a spectrum running from female to male. [FN65] This article explains why the linear conception of a line or spectrum is not adequate and offers a non-linear conceptualization of gender. To illustrate the limitation of a linear view of gender, here are a few of my friends: a butch transwoman; an FTM transperson who does not identify as male and, for that matter, is not very masculine or butch--he likes to wear nail polish; a butch woman who was assigned female at birth and who identifies as a woman; a woman who was assigned female at birth and who is viewed as "high femme," but who actually identifies as a fierce drag queen and does femininity with irony. How would my friends be ordered on a line from female to male? Where would we put a sissy FTM compared to a butch woman? Would the feminine FTM be more toward the female end of the spectrum because he is more feminine? Would the butch woman be more toward the female end of the spectrum because she identifies as a woman? Where does a fierce femme fall on this line? [FN66] It is impossible to order us on a line. The linear conception of gender is a logical impossibility. The line falls apart. *274 Gender is much bigger than a line. It is at least a three-dimensional space, but not a Cartesian one, not a space created by three lines. There are no lines, no ordering. [FN67] There is just space--an infinite space, a space that allows motion. I have gender claustrophobia and need a big space. I do not like it when people tell me that I have to identify as female or *275 male. I also do not like it when people tell me that, because it is not radical enough, I cannot identify as female or male. [FN68] I need a big space in which everyone's gender has a space, and in which our genders are not hierarchically ordered. [FN69] Thus, a conception that works for me is a galaxy. A gender galaxy. [FN70] It is big, and it moves. 1. Each Person Has a Gender, a Place in the Gender Galaxy One of my transgender friends gets annoyed when she is invited to speak on every gender panel. She asks the person who is inviting her *276 why that person cannot be on the panel themselves--after all, that person has a gender, too. Each person has a space in the galaxy. Each person has a gender. Trannygrrrl/boy with drag queen tendencies is a location in the gender galaxy. Fierce femme is a location in the gender galaxy. Girl with a hot glue gun is a location in the gender galaxy. Female and male are locations in the gender galaxy. [FN71] Gender is one's own specific way of interacting with and presenting oneself to the world. Gender is expression--physical, mental, spiritual, sexual, inter-relational, connective expression. Gender is how we relate to each other and to the world. Gender is how we move through the world. Gender is a sense of self and a relationship to the world. [FN72] One's sense of self is organic and inter-relational. Gender is that expressive, relational, embodied self. [FN73] And we all have a gender. None of us can be anything but ourselves or have a gender other than our own. [FN74] Gender is complex. There are many different gender expressions. Ideally, each of our genders is our own as defined by ourselves. [FN75]
2. The Multiplicity in the Gender Galaxy Is Not a Void I recently saw a postcard by Mollie Biewald from 1999 that said "things you can do to eradicate gender or to multiply it exponentially" followed by many trans-positive suggestions. Also, I often hear and read suggestions that all of gender is bad and we should just get rid of gender altogether--or that not having a gender is the best gender to have. Gender is seen as that which allows sexism and restrictive gender norms to exist. Gender is seen as a hindrance without which there would be no gender oppression. [FN76] I often hear that the ideal world would be one in which gender does not matter, in which everyone is seen simply as themselves, is seen simply as a human being, a gender-less human being--a gender-blind world. Sometimes, the gender galaxy with its infinite genders is conflated with having no genders and with being gender-blind. I want to be clear that this is not what I mean. First, I do not think that it is possible to have a world without gender. What would that world look like? Does that mean that we are all androgynous? Androgynous is a gender, a specific location in the galaxy. By saying that we want to eradicate gender, are we really replacing one norm with another? Second, I like my gender. I am rather attached to my tranny gender. It took me thirty-four years to get here. I like gendered people. Gender can be playful and fun. Gender is part of who we are. I do not want to rid myself of my gender; I want to reclaim it. Third, I cannot erase how my gender is perceived by others and the ramifications of those perceptions. Gender-blind politics is harmful to those who are most discriminated against because of gender norms. Right now, we have sexism. Right now, we have transphobia. Right now, though we are all harmed by gender norms, some of us are harmed more than others. To move toward a world in which sexism and transphobia do not exist, we have to address issues that affect women and transgender people. If we act as if gender does not exist, then we act as if *278 sexism and transphobia do not exist and so reinforce the privilege of gender-normal genders and, in particular, male genders. [FN77] Again, I propose a gender galaxy, a space with many genders, not no genders. The gender galaxy is a space with infinite gender options that can move and are not hierarchically related--a space in which each of us has a location, a space in which each of us can choose that location and where all locations are equally supported and respected. The gender galaxy already exists. There are infinite genders, and they are not linearly related. The people I see every day exist. Our genders exist. We exist. The gender galaxy already exists. But, we do still have to work toward a world in which everyone can freely choose their location in the gender galaxy. We do still have to work toward a world in which all people and all gender locations are supported, recognized, and protected by the law, without threat of harm, and, ideally, celebrated.
II. Against the Use of the Sex-Gender Distinction: It Is Not Logical and It Is A. De-Naturalizing Sex: Sex Is Not to Nature as Gender Is to Culture--Both Sex and Gender Are Social Constructs and Socially Real Often when I describe the beautiful gender variety of the transgender communities, the response is "well, that's gender, we all know that gender is cultural and varying--but, who are you kidding, all of you still have a predetermined sex." Sex is natural and biological and medically objective and fixed. Gender is cultural and changeable and subjective and in the head. Transgender people are those whose sex and gender do not match. I strongly disagree with this conceptualization. [FN78] *279 The separation of gender from sex is a separation of expression from biology, of culture from nature, of emotion from reason, and of subjectivity from objectivity. These are false distinctions, and they are not helpful if we are looking for a world that protects and celebrates difference. [FN79] My theoretical leanings aside, I will look at the case at hand. What is sex in the United States? How does sex get determined in the United States? *281 According to Julie Greenberg, one's ability to participate in reproductive heterosexual intercourse is key in how we draw that line, in determining one's birth-assigned gender. [FN85] Some courts use this standard, [FN86] although it is a difficult standard to apply practically. It is difficult to know whether or not and how a five-minute old baby will be a heterosexually reproductive adult. [FN87] We need a test for heteronormativity that works for five-minute old babies. This is our test: heteronormativity is measured with a ruler. [FN88] The baby's genitalia are measured by a ruler, and different doctors use different rulers. [FN89] If the clitoris/penis is below a certain length, it is a clitoris and the child a girl; if the clitoris/penis it is above a certain length, it is a penis and the child a boy. If the clitoris/penis falls between the two marks, the child is called intersex, a medical and social emergency. [FN90] This emergency must be "corrected" immediately, "corrected" with a knife, [FN91] for the child's own good. [FN92] *282 The categories of intersex, female, and male are not natural. If we use a certain ruler, all intersex people would be 'cured' on the spot. If we use a different ruler, all of us would be intersex. [FN93] Sex is just as much a cultural construct as is gender. [FN94] Both sex and gender are socially constructed and socially real. The logic of 'sex is to nature as gender is to culture' does not hold. Sex is not the natural biological true backdrop for a cultural gender. [FN95] *283 In addition to being illogical, the sex-gender distinction leads to an arbitrary cutting up of the body, leads us to make arbitrary distinctions between aspects and parts of our bodies. As just discussed, genital size at birth is absolute truth--and so it is definitely "sex." [FN96] Genital size later in life is somewhat related to truth--somewhat sex. Voice, body build, hormones, hair growth are half truths--part sex, part gender. How one moves, feels, talks, interacts does not matter--it is only gender. [FN97] All the above are of the body; they are physical as well as social. There is no logical reason to say that any one of the above is "more" physical/natural/bodily than another. Genitalia are no more physical than one's shoulders or one's hormones. One's tattoo is no less physical than one's body hair. What counts and what does not is an arbitrary choice. An arbitrary decision about what parts of our bodies count and what parts do not that constructs a hierarchy. Granted, there are some theories that posit that distinctions in genital size and shape are meaningful and should be used in creating social categories. For instance, some theorists believe that the differentiation between women and men may stem out of a differentiated role in reproduction, which is tied to genitalia. [FN98] My point is that we could make a million differentiations: we could have gender difference based on height, we could have gender difference based on whether or not someone can roll their tongue, we could have gender difference based on inny or outy *284 belly buttons, we could have gender difference based on how well a person can cook. And, if we are going to base gender on role in reproduction and form of genitalia, then to be consistent, are those people with wombs that are infertile not women? Are those people in menopause no longer women? Does a hysterectomy change one's gender? Are impotent men not men? Are men with small penises not men? Having an enormous social category that affects every second of one's life based on one's assumed role in reproduction or one part of one's body is excessive and arbitrary. [FN99] Giving such enormous import to assumed genitalia is an arbitrary cultural choice. It is a choice that is linked to and supported by the sex-gender distinction. The sex-gender distinction is not logical, and it creates arbitrary distinctions in our embodied existence. This is not its only harm.
B. The Sex-Gender Distinction Takes the Power to Self-Define from Transgender People and Hands It to Non-Transgender People and the Medical Establishment If the sex-gender distinction is illogical and arbitrary, why do we hold onto it? I suspect it is because the use of this distinction sets up a social reality that gives power to some and takes power from others. What are the systems of power that the sex-gender distinction supports? [FN100] What is at stake? [FN101] *285 By calling doctor-assigned gender by a different name, by calling it "sex" and by calling it by a name that we (incorrectly) associate with nature and objectivity, we give doctors power. Doctors' gender assignments, although subjective assignments done by human beings, are relegated to a different truth realm than any other gender assignments. The sex-gender distinction sets up doctor-assigned gender (called 'sex') as Truth, with a capital "T." It gives doctors omnipotent power to define and to decide gender, making their choices unquestioned and sacred. Thus, the sex-gender distinction provides the backdrop that gives doctors the right to perform unconsented mutilation on people whom the doctors call intersex in order to fit that truth. [FN102] It makes a transgender person's self-assignment of gender false, as hiding the truth, or at best, something unrelated to the truth. The sex-gender distinction keeps transgender people's self-identity from being recognized as valid by courts, by doctors, by people in general. The sex-gender distinction appears in many forms. It commonly appears in definitions of transgender people. Transgender people often are defined as "having a mismatch of gender and sex." [FN103] Following the logic of truth, we can rewrite this as: "transgender people are really objectively and naturally of sex x but think they are and pretend to be of gender y." Within this truth, transgender *286 people cannot self-define. The doctor is right; transgender people are wrong. [FN104] Unfortunately, these definitions of transgender people are common and prevail in a large part of our society's consciousness. [FN105] A personal example: I am a female to male transgender person who has been on testosterone for a couple of years and looks male. I identify as trans, not male, though in the male region of the galaxy. Often when I tell someone that I am transgender, that person then starts seeing me as a girl--an odd girl, a girl who has mutilated herself, a girl who wants to be a boy, a girl always and forever. The doctor was right. I am wrong. The doctor names my essence. The best I can do is name the trimmings. Why can we not question sex, the natural objective and eternal truth? We can question the teacher who told me I could not do math. We can question the career counselor who told me to wear a skirt. We can question the coach who told me I could not do martial arts. We can question doctors who do breast cancer research exclusively on men. But, questioning the doctor who told me I am a girl is off limits. Why do doctors get to define what it means to be a man or a woman? Why do non-transgender people get to define transgender people? [FN106] The sex-gender distinction furthers a disparity in power: the doctor has the power, the transgender person does not. I expect that therein lies one reason for the continued use of the sex-gender distinction. [FN107] *287 I am concerned about doctors having the power to define a person's gender. Gender should be self-determined, period. Telling someone that they cannot be their self-identified gender is like telling that person they cannot be themselves. No one can be other than who they are. The court in Doe v. Yunits [FN108] points this out well by saying that asking a transgender woman to be male is like asking a short person to be tall. Though I do not want the medical establishment to have power over transgender people, I do not want the transgender movement to disengage from the medical establishment. Many transgender people want and need medical intervention. Many transgender people, in order to be themselves, depend on sympathetic and kind doctors. Those transgender people who do want medical intervention (hormones, surgery or multiple surgeries) [FN109] do require medical care, and thus require doctors who are willing and able to treat transgender people. I have had some extraordinarily positive experiences with doctors who have listened to me and provided me with respectful and individualized care. I appreciate those doctors and clinics, the medical care I received, and that the doctors did not try to tell me who I am. I do not object to the medical system. I object when a person's gender is defined by someone other than the person themselves. The sex-gender distinction creates an environment that denigrates gender self-identification. It is a tool for giving power to some and taking power from others. It is a ruse for validating some experiences over others, for linking some experiences to a purported objectivity, and for giving certain professions eminent domain.
C. The Sex-Gender Distinction Reinforces an Environment that Places Transgender People in Physical Danger The sex-gender distinction also reinforces a conceptual framework that is used to justify violence against transgender people. As described above, the sex-gender distinction sets up the doctor-assigned gender as truth, and the transgender person's self-identified gender as something solely in that person's head. The belief that transgender people are frauds *288 against truth, or people who deceive others, permeates our society. This belief places transgender people in physical danger. One not uncommon example: Gwen Araujo was killed by her classmates because they were transphobic, because they assumed that all women are alike and that there is a truth to doctor assigned birth. [FN110] They had such a hard time parting with their false beliefs that they had to destroy any evidence to the contrary. They murdered Gwen. Gwen's murderers are not alone in their transphobia. One article went so far as to attempt to justify the murderer's actions by saying that Gwen raped the murderers by deceiving them, by going against the "truth" of "sex:" Unfortunately, transphobia is alive and well. An average of one transgender person a month is murdered because of transphobia. [FN112] Transphobia is supported by a belief that doctor-assigned gender is truth and that the self-identified genders of transpeople are not truthbut fraud, deception. To add insult to injury, much of the resulting media coverage of Gwen's murder referred to Gwen as "he," implying that she was not who she said she was. Again, there is the charge of deception. The use of incorrect pronouns also arises out of and reinforces the sex-gender distinction. By using incorrect pronouns, the media perpetuates the myth that birth-assigned gender is truth and that transgender people are lying, reinforcing the culture that endangers lives. [FN113] I want to thank those *289 papers who, after discussions with the transgender communities, changed their editorial policies and started addressing transgender people respectfully and correctly. [FN114]
D. The Sex-Gender Split Assumes Transgender People Are Not Whole, Cuts Bodies off from Minds, and Cuts Bodies into Pieces In addition to setting up sex as truth and giving doctors omnipotent power to define and to declare gender, the sex-gender distinction create in transgender people a mind-body split. In the sex-gender conceptual framework, I have a female sex and a male gender; in other words, I am a female bodied, male-identified person. Female body, male head. This makes my head spin, literally makes me nauseated. This conceptualization is self-alienating. [FN115] I am transgender, all of me is *290 transgender. I am a tranny with a tranny body. I am whole. I match myself just fine. [FN116] And I will gender my genitalia by myself, thank you very much. My transwoman friend says it beautifully, "I'm a woman, this is my body, therefore it's a female body and who is some doctor to tell me otherwise?" [FN117] Further, the sex-gender distinction cuts the body up into a hierarchy of pieces as described in Part II.A. I am not an assemblage of pieces, some of which are more true than others. [FN118] E. No Sex-Gender Distinction, Indeed No Sex The sex-gender division makes it seem as if there is a truth beyond gender-- something natural and inevitable--to which we can tie gender. [FN119] This false distinction is a way of ranking characteristics, of giving *291 validity to some, taking it from others, making some seem more basic and essential than others. The sex-gender distinction leads us to devalue that which is usually called gender. It leads us to devalue transgender people's self-identified genders. Sex is not truth. So, what is sex? What is the distinction between sex and gender? Sex is the unconsented gender assignment at birth that masks itself as objective truth. That is the only distinction: sex is unconsented gender, and sex is gender pretending to be objective scientific truth. If we call the gender assignment that occurs at birth "sex," then we give that assignment a special truth value, make it appear as if it were an inevitable, objective truth. If we call the assignment that happens at birth "gender assigned at birth," we call it what it is, an assignment by a certain person at a certain time. If we give special value to the birth-assigned gender, then we denigrate transgender people's self-assigned gender. If we hide the fact that the birth-assigned gender is a subjective assignment, then we see it as more real than future subjective assignments. Using "sex" makes transgender people's self-identified genders appear less real and valid. The term "sex" takes power from transgender people. Using "sex" masks that it is in reality an unconsented gendering. I find the concept of sex harmful and deceptive. As such, I see no point of keeping the concept of sex. It is a myth, albeit a very powerful one. It is a myth I would like to dethrone. [FN120] The gender galaxy is not a cute fanciful construct that leaves in place 'sex' as truth. It displaces sex. Sex is gone. All that is left is the gender galaxy. [FN121]
FOOTNOTES
[FN1]. Eve Sedgewick, Epistemology of the Closet 1, 22 (1990). [FN2]. I use the word transgender very broadly to refer to people whose gender identity and/or expression does or is perceived to not match stereotypical gender norms associated with their birth-assigned gender. Some people who fit the above definition do not self-identify as transgender. For instance, all masculine women fit the above definition of transgender, yet not all masculine women identify as transgender. [FN3]. E.g., Schwenk v. Hartford, 204 F.3d 1187, 1201 (9th Cir. 2000); Ulane v. E. Airlines, Inc., 742 F.2d 1081 (7th Cir. 1984); Rentos v. OCE-Office Sys., 72 Fair Empl. Prac. Cas. (BNA) 1717 (S.D.N.Y. 1996); Littleton v. Prange, 9 S.W.3d 223 (Tex. Ct. App. 1999); J.D. v. Lackner, 80 Cal. App. 3d 90 (Ct. App. 1978); Frances B. v. Mark B., 355 N.Y.S.2d 712 (Sup. Ct. 1974); M.T. v. J.T., 355 A.2d 204 (N.J. Super. Ct. App. Div. 1976). [FN4]. See, e.g., all cases supra note 3, except Frances B. v. Mark B. A male to female transgender person (MTF) is a person who was assigned male at birth but identifies as female. A female to male transgender person (FTM) is a person who was assigned female at birth but identifies as male. I frequently encounter people who do not know that FTMs exist. I am a FTM transgender person, and for most of my life, I did not know that FTMs existed. For more literature about FTMs, see, for example, Leslie Feinberg, Trans Liberation: Beyond Pink and Blue (1998). See also, Loren Cameron, Body Alchemy: Transsexual Portraits (1996); Finding the Real Me: True Tales of Sex and Gender Diversity (Tracie O'Keefe & Katrina Fox, eds., 2003). [FN5]. To be a "real woman" or a "real man," one has to undergo countless medical procedures to alter one's body to make it more stereotypically female or male--and even that may not be enough. See, e.g., In re Gardiner, 42 P.3d 120, 122-24 (Kan. 2002); Littleton, 9 S.W.3d at 223. To be a "real man," one has to be heterosexual. See, e.g., Frances B., 355 N.Y.S.2d at 713-18, M.T., 355 A.2d at 210. To be a "real woman," one has to be heterosexual. Littleton, 9 S.W.3d at 225. To make one a "real man," the size and shape of one's genitalia are key. See, e.g., Frances B., 355 N.Y.S.2d at 118; Kantaras v. Kantaras, No. 98-5375, slip op. at 40-55 (Fla. Cir. Ct. 2003), available at http://www.transgenderlaw.org/cases/kantarasopinion.pdf (Kantaras is a great improvement by not requiring genital surgery). To be a "real man," one has to fit sexist gender stereotypes. Kantaras, No. 98-5375, slip op. at 64, 795. Some articles discussing transgender people consider only MTFs, or use MTFs as the main examples. See, e.g., Ronald R. Garet, Self-Transformability, 65 S. Cal. L. Rev. 121, 126, 130, 135, 142, 145, 151, 153 (1991) (asking how the lives and actions of transgender people should be regarded morally by using solely MTF examples). See also Kevin Tallent, My 'Dude Looks Like a Lady:' The Constitutional Void of Transsexual Marriage, 36 Ga. L. Rev. 635 (2002) (discussing the implications of In Re Gardiner, using primarily MTF examples). [FN6]. I estimate that only about 2% of my clients have had genital surgery. Approximately 50% of my clients have had some form of medical intervention. The medical intervention requirement, and in particular the genital surgery requirement, makes it especially difficult for many of my clients to make use of protective laws. [FN7]. See, e.g., Henry Lee, Murder Trial Jury Selection, S.F. Chron., Mar. 16, 2004, at B1. Gwen Araujo was a high school student in Newark, CA. She was beaten and strangled to death at a party by her classmates, while other classmates watched. [FN8]. Gwendolyn Smith and Ethan St. Pierre provide the most comprehensive list of transgender people who have been murdered, approximately one person a month. Gender Education & Advocacy, Trans Murder Statistics: 1970 to 2004, at http://www.gender.org/resources/dge/gea02002.pdf (last visited Mar. 31, 2005). For a list of names, please see Gwendolyn Ann Smith, Remembering Our Dead, at http://www.gender.org/remember/# (last visited Apr. 5, 2005). Gwen Smith also started the Annual 'Day of Remembrance,' a day to remember the many transgender people who have died because of transphobia. Last year, I was scheduled to do a transgender know-your-rights workshop with a local transgender activist. She did not make it to the workshop because, that day, she was beaten so badly that she was unconscious for days. On August 13, 2004, a transgender woman, Delicious Green, was murdered in San Francisco. Press Release, Community United Against Violence (Aug. 2004) (on file with author). Michelle Paz was also murdered because of transphobia. Amnesty International, Venezuela: Possible extrajudicial execution/ Fear for safety, at http:// web.amnesty.org/library/index/engAMR530012002?open&of=eng-384 (Feb. 12, 2002). Bibi Barajas was shot to death in 2002. Human Rights Campaign, Transgender Basics, at http://www.hrc.org/Content/NavigationMenu/HRC/Get_ Informed/Issues/Transgender_Issues1/Transgender_Basics/Transgender_Basics.htm (last visited Nov. 1, 2004). [FN9]. Ella Baker Center for Human Rights and TransAction, Walking While Transgender: Law Enforcement Harassment of San Francisco Transgender/Transsexual Community (2000). [FN10]. Approximately 50% of the calls that the agency Community United Against Violence (CUAV) receives from transgender people are calls in which the perpetrators of the violence are law enforcement agents. Id. A nationwide survey of violence against LGBT people found that 40% of police-initiated violence was directed at transgender people. National Coalition of Anti-Violence Programs, Anti-Lesbian, Gay, Bisexual, and Transgender Violence in 1998 (1999), available at http:// www.avp.org/publications/reports/1998ncavpbiasrpt.pdf. In 1999, Victoria Schneider, a transgender woman, sued the San Francisco Sheriff's Department for doing an unnecessary strip search and harassing her. Ms. Schneider won the suit. Bill Wallace, 750,000 Awarded for Strip-Search by Sheriff's Department, S.F. Chron., Apr. 20, 1999, at A15. [FN11]. Nat'l Ctr. for Lesbian Rights and the Transgender Law Ctr., Trans Realities: A Legal Needs Assessment of the San Francisco Transgender Communities (2003), available at http:// nclrights.org/publications/transrealities0803.htm; see Patrick Letillier & Ysenio V. Lewis, Human Rights Commission, City and County of San Francisco, Economic Empowerment for the LGBT Communities (2000), available at http:// www.sfgov.org/site/search.asp?q=economic+empowerment (reported that 70% of self-identified transgender respondents were found to be unemployed). The median income of transgender people in San Francisco who are employed is between $744 (MTFs) and $1100 (FTMs) per month. S.F. Dep't of Public Health, The Transgender Community Health Project: Descriptive Results (Feb. 18, 1999), at http://hivinsite.ucsf.edu/InSite.jsp?doc=2098.461e. The Transgender Law Center's Trans Realities study found similar results: Sixty-four percent of survey respondents reported annual incomes of $25,000 or less. Nat'l Ctr. for Lesbian Rights and Transgender Law Ctr., supra. In Washington, D.C., 42% of the transgender survey respondents were unemployed, and 31% reported an annual income of less than $10,000 per year. Jessica Xavier, The Washington Transgender Needs Assessment Survey (2000), available at http:// www.glaa.org/archive/2000/tgneedsassessment1112.shtml. For an example of employment discrimination, see The Associated Press, Transgender Podiatrist Settles Gender Discrimination Complaint Against Hospital, Mar. 27, 2004, at http://www.hrc.org/Content/ContentGroups/News3/2004_March/Transgender_ Podiatrist_Settles_Discrimination_Complaint.htm (a transgender woman who was the director of the surgical residency program for thirteen years was fired two weeks after disclosing that she is transgender). [FN12]. At the Transgender Law Center, each month I saw at least one client who was fired from their job because their employer is transphobic. Most of the employment discrimination cases at the Employment Law Center's Lesbian Gay Bisexual and Transgender Project involved gender identity discrimination. Conversation with Sheryl Harris, Esq., Founder, LGBT Workers' Rights Project, in San Francisco, Cal. (2002). An entire website, Transgender at Work, at http://www.tgender.net/taw/tg.html (2001), is dedicated to navigating being transgender at work. [FN13]. S.F. Dep't of Public Health, The Transgender Community Health Project: Descriptive Results, available at http:// hivinsite.ucsf.edu/InSite.jsp?doc=2098.461e (Feb. 18, 1999). The Trans Realities study similarly found that 19% of respondents lack stable housing. Nat'l Ctr. For Lesbian Rights and Transgender Law Ctr., supra note 11. [FN14]. S.F. Dep't of Pub. Health, supra note 13. The Transgender Law Center's TransRealities study found similarly that 46% of respondents lack health insurance. Nat'l Ctr. For Lesbian Rights and Transgender Law Ctr., supra note 11. In Washington, D.C., almost 50% of the respondents had no health insurance, and 39% had no doctor for routine care. Xavier, supra note 11. Further, 58% of the respondents who use hormones obtained them from friends or off the street. Id. In Los Angeles, 53% of female-to-male respondents had been denied medical services simply because they are transgender. FTM Alliance of Los Angeles, Results of the 2003 Health Access Survey (Mar. 2004). The Transgender Law Center has worked on several cases in which people were told by health insurance companies that they were denied coverage because they are transgender. [FN15]. For a documentary of his fight with ovarian cancer, see Southern Comfort (New Video Group 2001). Another FTM transgender person was denied coverage for uterine cancer. His insurance company said that it "did not cover uteruses in men." Interview with FTM, in San Francisco Bay Area (2001). [FN16]. Cal. Safe Sch. Coalition & the 4-H Center for Youth Dev., Univ. of Cal., Davis, A Safe Place to Learn: Consequences of Harassment Based on Actual or Perceived Sexual Orientation and Gender Non-Conformity and Steps for Making Schools Safer 2 (2004). See Office for Pub. Policy of the Gay Lesbian and Straight Education Network, The 2001 National School Climate Survey, Gay Lesbian and Straight Education Network (2001) (finding that 74% of transgender youth reported being sexually harassed at school in the past year, and 90% of transgender youth reported feeling unsafe at school because of their gender expression). [FN17]. Assem. Bill 537, 1999-2000 Reg. Sess. (Cal. 1999) (amending Cal. Educ. Code §200). [FN18]. Joel Rubin, Beliefs Imperil Funding: Three of Five on an O.C. School Board Reject a State Gender Definition on Religious Grounds, L.A. Times, Mar. 14, 2004, at B1. In response to Westminster, the California Department of Education issued a Legal Advisory, stating that no school district could ignore state law. Legal Advisory Re: Gender Equity and Discrimination Laws in California Public Schools (Apr. 30, 2004), available at http:// www.cde.ca.gov/nr/re/ht/yr04ltr0430.asp. [FN19]. Rubin, supra note 18. [FN20]. Cal. Gov't Code §12920 (1992); Minn. Stat. §363A.03, subd. 44 (2004); N.M. Stat. Ann. §28-1-2(Q) (2000 & Supp. 2003); R.I. Gen. Laws §11-24-2.1(l) (2002). [FN21]. See Assem. Bill 537, 1999-2000 Reg. Sess. (Cal. 1999) (amending Cal. Educ. Code §200). [FN22]. In California, Transgender Equality California, a coalition of activists and civil rights organizations, is preparing to introduce the first transgender health insurance bill in the United States. The bill would require health insurances to stop discriminating against transgender people. [FN23]. See supra note 5. [FN24]. Several major newspapers have recently written about transgender people who do not identify as strictly female or male. See, e.g., Fred A. Bernstein, On Campus, Rethinking Biology 101, N.Y. Times, Mar. 7, 2004, at 9.1 (showing how college campuses are becoming more open to transgender people, including transgender people who do not identify as female or male); Rona Marech, Nuances of Gay Identities Reflected in New Language, S.F. Chron., Feb. 8, 2004 at A1. (exploring different transgender identities, particularly identities that go beyond the female-male binary). For more discussion on gender identities that go beyond female and male, see Kate Bornstein, Gender Outlaw: On Men, Women, and the Rest of Us (1994) [hereinafter Bornstein, Gender Outlaw]; Kate Bornstein, My Gender Workbook: How to Become a Real Man, A Real Woman, the Real You, or Something Else Entirely (1998) [hereinafter Bornstein, Gender Workbook]; Pat Califia, Sex Changes: The Politics of Transgenderism (1997); Feinberg, Trans Liberation, supra note 4; Leslie Feinberg, Transgender Warriors: Making History from Joan of Arc to Dennis Rodman (1996); Finding the Real Me, supra note 4; Jamison Green, Becoming a Visible Man (2004). [FN25]. There is a debate concerning the appropriate use of words such as "queer," "dyke," and "fag." These words can certainly be used as epithets. Some people within the LGBT (Lesbian, Gay, Bisexual, and Transgender) communities prefer that people outside of the LGBT communities not use these terms. Yet, within parts of the LGBT communities, the words are reclaimed and used proudly. This article uses "queer," "dyke," and "fag" in a celebratory, not derogatory, sense. For a more detailed discussion, see Michelangelo Signorile, The Word 'Queer' Belongs in the Mainstream, Newsday, Nov. 25, 2003, at A1. [FN26]. See e.g., Bernstein, supra note 24; Marech, supra note 24; Julie A. Greenberg, Defining Male and Female: Intersexuality and the Collision Between Law and Biology, 41 Ariz. L. Rev. 265, 275 (1999); Nancy Nangeroni, Int'l Found. for Gender Education (IFGE), Transgender 101, at http:// lgbtrc.ucr.edu/trans_101.html (last visited Feb. 7, 2005); Cristan Williams, TG 101, at http://www.geocities.com/gypsyrose1972/tg_101.html (last visited Feb. 7, 2005). [FN27]. Mary Anne C. Case, Disaggregating Gender from Sex and Sexual Orientation: The Effeminate Man in the Law and Feminist Jurisprudence, 105 Yale L.J. 1, 10 (1995) (arguing that the sex-gender distinction is necessary to protect masculine women and feminine men). [FN28]. Francisco Valdes, Queers, Sissies, Dykes, and Tomboys: Deconstructing the Conflation of "Sex," "Gender," and "Sexual Orientation" in Euro-American Law and Society, 83 Cal. L. Rev. 1, 6 nn.5-6 (1995) Other writers similarly distinguish sex from gender: seeing sex as that which is more tied to biology and gender as that which is more tied to culture. See, e.g., Greenberg, supra note 26, at 271; John M. Ohle, Note, Constructing the Trannie: Transgender People and the Law Footnote, 8 J. Gender Race & Just. 237, 243-45 (2004); Amy Sonnie, Queer 101: A Glossary, in Revolutionary Voices: A Multicultural Queer Youth Anthology, 245 (Amy Sonnie ed., 2000); TransLife.net, Transgender 101, at http://www.translife.net/tg101/basicdefs.htm (last visited Feb. 7, 2005). [FN29]. Katherine Franke shows how the sex-gender distinction is harmful to the feminist movement. If we view sex and gender as distinct, that means we view woman and femininity and man and masculinity as distinct--where the former in each pairing is seen as more natural, prior, and real than the latter--its cultural overlay. If we see sex as more natural and real than gender, then we allow ourselves to question and destabilize femininity and masculinity, but we do not allow ourselves to question and destabilize woman and man. Yet, woman, man, and sex are socially constructed categories, constructed out of our gender norms. By keeping sex and gender distinct, we set off sex as that natural reality which we do not question. In so doing, we limit our ability to challenge gender norms. Katherine M. Franke, The Central Mistake of Sex Discrimination Law: The Disaggregation of Sex from Gender, 144 U. Pa. L. Rev. 1, 1-3 (1995) (showing how the sex-gender distinction is harmful to transgender people). [FN30]. We usually refer to that which we are assigned at birth as sex. This article argues against the use of the concept sex. It argues that sex is nothing more than birth (and other-, as opposed to self-) assigned gender. See Part II. Hence, that which we are all assigned at birth I refer to as birth-assigned gender. [FN31]. See, e.g., Kantaras v. Kantaras, No. 98-5375, slip op. at 1 (Fla. Cir. Ct. 2003); Anonymous v. Weiner, 270 N.Y.S.2d 319, 321 (Sup. Ct. 1966); Frances B. v. Mark B., 355 N.Y.S.2d 712, 717 (Sup. Ct. 1974); Hartin v. Dir. of Bureau of Records & Statistics, 347 N.Y.S.2d 515, 518 (Sup. Ct. 1973); Littleton v. Prange, 9 S.W.3d 223, 225 (Tex. Ct. App. 1999). [FN32]. The most explicit example is the case of Gwen Araujo. The defendants who murdered her claimed as their justification that Gwen "deceived" them. See, e.g., Lee, supra note 7. Another well-publicized tragedy is the murder of Tyra Hunter. Tyra was in a car accident. When the paramedics who were called to the scene saw her genitalia, they said that she was not a real woman--in other words, that she deceived them by making them assume that she had one type of genitalia when she in fact had another. They stopped helping her and let her die. For a community account, see http://songweaver.com/gender/hunter.html. The reporting in the Washington Post further entrenches the incorrect belief that transgender people deceive. The Post used Tyra's old name, Tyrone, in reporting her death and described her as a "man dressed as a woman." Wendy Melillo, D.C. Fire Officials to Reinvestigate Transvestite's Death, Wash. Post, Dec. 5, 1995, at B2. In doing so, the Post suggests that Tyra is deceiving, that Tyrone is her real name, and that she is really a man. My friends and I commonly face the reaction that we are not who we say we are. Sometimes the reaction is a violent one. Furthermore, I believe that much of the violence against transgender people arises out of a person feeling they have been deceived rather than that a gender norm has been violated. Hence, it is imperative that our society recognize transgender people as being the gender that we say we are and that our society changes its very narrow views of what it means to be a woman or a man. [FN33]. For particularly insulting examples, see Ulane v. E. Airlines, Inc., 742 F.2d 1081, 1087 (7th Cir. 1984); Frances B., 355 N.Y.S. 2d at 712; Littleton, 9 S.W.3d at 231. [FN34]. See, e.g., M.T. v. J.T., 355 A.2d 204, 206 (N.J. Super. Ct. App. Div. 1976). [FN35]. See, e.g., In re Gardiner, 42 P.3d 120 (Kan. 2002); Goins v. West Group, 635 N.W.2d 717 (Minn. 2001). [FN36]. Several recent authors, transgender authors and allies, in the legal field use the term transgender broadly and recognize the diversity of the transgender communities. For instance, Dean Spade shows that transgender and gender non-conforming people make many different choices, for personal and/or economic reasons, about their bodies and to what extent to enter the medical system. Dean Spade, Resisting Medicine, Re/modeling Gender, 18 Berkeley Women's L.J. 15 (2003). Paisley Currah and Shannon Minter use the term transgender broadly: "pre-operative, post-operative and non-operative transsexual people; cross-dressers; feminine men and masculine women; intersexed persons; and more generally, anyone whose gender identity or expression differs from conventional expectations of masculinity or femininity." Paisley Currah & Shannon Minter, Unprincipled Exclusions: The Struggle to Achieve Judicial and Legislative Equality for Transgender People, 7 Wm. & Mary J. Women & L. 37, 37 n.1 (2000). Taylor Flynn uses transgender synonymously with "gender variant," "gender non-conforming," and "trans," and shows that one's anatomy does not determine one's gender identity. Taylor Flynn, Transforming the Debate: Why We Need to Include Transgender Rights in the Struggles for Sex and Sexual Orientation Equality, 101 Colum. L. Rev. 392, 395 n.2 (2001) (expanding and adding to the description of gender diversity). [FN37]. Interviews at Transgender and LGBT Meetings, in San Francisco Bay Area: FTM International, Transgender San Francisco, Community United Against Violence, Tenderloin Aids Resource Center, UCSF Trans Women of Color Project, Youth Gender Project, Lavender Youth Recreation and Information Center, United Genders of the Universe, Tom Waddell Health Clinic, Dimensions Health Clinic (2000-2004); interviews at Transgender Conferences: True Spirit in Washington, D.C (2001), FTM International Conference in Seattle, WA (2002), LGBT Health Summit in Boulder, CO (2002); interviews and conversations with over 1,000 clients and workshop participants during my work at the Transgender Law Center (2002-2004) [hereinafter Interviews]. See Dean Spade, Make-Zine, at http:// www.makezine.org; Micah Timtum, A Trans Jew Zine (2000). See generally supra note 24. [FN38]. Even in the law, there are masculine women and feminine men. See, e.g., Price Waterhouse v. Hopkins, 490 U.S. 228 (1989); Rosa v. Park W. Bank & Trust Co., 214 F.3d 213 (1st Cir. 2000). See generally, e.g., Revolutionary Voices: A Multicultural Queer Youth Anthology (Amy Sonnie ed., 2000); Sandra Lee Bartky, Feminity and Domination: Studies in the Phenomenology of Oppression (1990). [FN39]. See supra note 24. See also S.F. Human Rights Comm'n, supra note 5 (in which almost 500 people described their often complex and rich gender identities). [FN40]. S.F. Human Rights Comm'n, Gender Neutral Bathroom Survey, Raw Data #37 (on file with author). For summary of survey, see S.F. Human Rights Comm'n, supra note 5. [FN41]. Particularly dyke-FTM community forums such as "Gender Talk" (2001) organized by the San Francisco Human Rights Commission, or the community forum organized by Seattle's FTM Conference (2002). See Jaron Kanegson, After the Butch/FTM Conference: Why Not to Give UP on Butch/FTM/Trannyboy Coalition Building, FTM Int'l Newsletter (FTM Int'l, S.F., Cal.), June 1998, at 5. [FN42]. "Genderqueer" is a term that some who see themselves as falling outside of the female-male binary use to describe their gender identity, just as some who fall outside of the gay-straight binary use "queer" to describe their sexual orientation. See infra Part I.A.4 and infra note 59 for a discussion about the difference between gender identity and sexual orientation. [FN43]. Gender identification: I use the terms "identify as gender x" to refer to a person self-naming and self-claiming their gender. [FN44]. Bornstein, Gender Outlaw, supra note 24, at 8. [FN45]. Feinberg, Trans Liberation, supra note 4, at 1. [FN46]. See, e.g., Finding the Real Me, supra note 4; Riki Anne Wilchins, Read My Lips (1997); Sex, Lies and Darwin: Profile of Joan Roughgarden (BBC television broadcast, Jan. 26, 2004). [FN47]. See Interviews, supra note 37. For futher examples, see the books cited in note 24. [FN48]. See Interviews, supra note 37. For futher examples, see the books cited in note 24. [FN49]. See Interviews, supra note 37. For futher examples, see the books cited in note 24. [FN50]. I ended up standing in the middle of the room. [FN51]. I personally know two FTMs who chose to become pregnant and bear and raise children. There were enough FTMs to have an entire workshop on child bearing/rearing at last year's FTM Conference. For workshop descriptions, see So You Want to Have Kids? Parenting and Childbirth, FTM 2004: The Gender Odyssey (2004), at http://www.transconference.org/programming/index.htm. [FN52]. For a list of common surgeries, see The Harry Benjamin Int'l Gender Dysphoria Ass'n, Standards of Care for Gender Identity Disorders, Sixth Version (Feb. 2001), at http://www.hbigda.org/soc.cfm. For a more detailed list, see Ryan Nicholas Gorton, M.D., Transgender Therapy: A Summary of Common Surgical, Medical, and Behavioral Techniques to Achieve Cross-Gender Transition, Sylvia Rivera Law Project (2004) (including mastectomy--bilateral periareolar, mastectomy and bilateral complete with nipple and areolar reconstruction, mastectomy--scar revision, liposuction to reduce fat in hips, thighs, buttocks, metoidioplasty, metoidioplasty with urethroplasty, abdominoplasty, free flap forearm phalloplasty, abdominal pedicle flap phalloplasty, penile erectile prosthesis implantation, scrotoplasty with insertion of testicular expanders, colpectomy, colpoplasty, hysterectomy with bilateral salpingo-oopherectomy, tracheal shave, forehead contour adjustment, malar augmentation, rhinoplasty, mentoplasty, rhytidectomy, blepharoplasty, feminizing laryngoplasty, vaginoplasty with penile inversion, colovaginoplasty, simple penile amputation, urethromeatoplasty, labiaplasty, bilateral orchiectomy, augmentation mammoplasty). [FN53]. See Interviews, supra note 37. See also Finding the Real Me, supra note 4; Bornstein, Gender Outlaw, supra note 24. [FN54]. Most insurance companies categorically exclude any procedures related to being transgender in their provider manuals. The few exceptions are California's Medi-Care (Medi-Cal) recipients (though there are virtually no doctors in California who perform transgender surgeries and take Medi-Cal) and employees of the City of San Francisco, Dupont, Lucent, Avaya, and IBM. For a listing of Fortune 500 companies that cover all or part of the health needs of transsexuals, see Transgender at Work, Best Companies to Work For; Transsexual Health Benefits Registry (2001), at http://www.tgender.net/taw/goodcomp.html. In 2000, Medi-Cal was ordered by the Superior Court of California to halt categorical denials of medically necessary procedures related to being transgender. Doe v. Bonta, No. 00CS00954 (Cal. Super. Ct. 2001). In 2001, the Board of Supervisors of San Francisco removed the transgender exclusions from the city health plan. Advocates for the removal or the exclusions pointed out that the city was not providing special benefits to transgender people. Rather, it was making sure that transgender people got the same access to health care as everyone else. For example, non-transgender people can obtain a hysterectomy, a mastectomy, hormone therapy--yet transgender people are often denied these same treatments. See Mark Leno, Paying and Human Rights, S.F. Chron., Apr. 29, 2001, at D8. For a personal story, see Rachel Gordon, Profile: Claire Skiffington: Changing Times: New Health Benefits for Sex-Change Surgery Will Help One City Administrator on Journey to Life as a Woman, S.F. Chron., May 14, 2001, at A1. [FN55]. See supra note 14. [FN56]. See supra notes 11, 12. [FN57]. I am not aware of any such study, nor is the Transgender Civil Rights Project at the National Gay and Lesbian Taskforce, the Sylvia Rivera Law Project, or the National Center for Lesbian Rights. [FN58]. I am not aware of any studies that document, for instance, how many FTM transgender people choose not to have "top surgery" (chest reconstruction) because of their expression of gender identity, versus how many FTM transgender people choose not to have top surgery because of cost or lack of medical data. In my experience working at the Transgender Law Center, all three types of choices are made frequently. [FN59]. A version of this statement is used in many "Transgender 101" trainings and materials. See, e.g., Alexander John Goodrum, Gender Identity 101: A Transgender Primer, at http://www.sagatucson.org/resources/gender_ 101.htm (last visited Feb. 14, 2005); Warren J. Blumenfeld, Glossary of Transgender Terms, Out Proud, at http://www.outproud.org/article_glossary.html (last visited Feb. 14, 2005); Carleton College: Gender and Sexuality Center, Vocabulary (2004), at http://webapps.acs.carleton.edu/campus/gsc/lgbt/vocab. [FN60]. See, e.g., Finding the Real Me, supra note 4; Best Transgender Erotica (Hanne Blank & Raven Kaldera eds., 2002); Alex Sousa & Eric Peterson, FTM on FTM, FTM Int'l Newsletter, (FTM Int'l, S.F., Cal.), June 1998, at 1, 12. [FN61]. See Interviews, supra note 37. [FN62]. Most states that allow one to change one's gender marker on one's birth certificate require surgery in order to do so. See Ala. Code §22-9A-19(d) (1975); Ark. Code Ann. §20-18-307(d) (1987); Cal. Health & Safety Code §103425 (1996); Colo. Rev. Stat. §25-2-115(4) (1997); D.C. Code Ann. §7-217(d) (2002); Ga. Code Ann. §31-10-23(e) (2000); Haw. Rev. Stat. §338-17.7(4) (1993); La. Rev. Stat. Ann. §40:62(c) (2001); Mass. Gen. Laws ch. 46, §13(e) (2000); Mich. Comp. Law §333.2831(c) (2002); Mo. Rev. Stat. §193.215(9) (2000); Neb. Rev. Stat. §71-604.1 (2002); N.J. Stat. Ann. §26:8-40.12 (1996); N.M. Stat. Ann. §24-14-25(D) (2000); N.C. Gen. Stat. §130A-118(b)(4) (2003). Many cases require one to fit sexist stereotypes to count as a "real" transgender person. See cases discussed supra Part III.C. For specific medical guidelines, see Whitney Barnes, The Medicalization of Transgenderism, Trans-Health.com (Summer 2001), at http://www.trans-health.com/Iss1Vol1/medicalize_tg.htm. Transgender women were refused hormones because they did not go to the doctor in a skirt. Transgender men were refused hormones because they disclosed to their doctor that they are gay. Disclosing to one's doctor that one is neither female nor male and obtaining hormones is virtually impossible. Interviews, in San Francisco Bay Area, Cal. (2002). [FN63]. Danny Kirchoff, director of Transgender Equality California at Equality California, calls this the 'proto-tranny-narrative." [FN64]. See supra note 62. Since, by and large, the legal and medical communities have a particular view of what it means to be transgender, in order to get rights and/or medical care, transgender people, in these settings, have to conform themselves to the expectations. I have gone to countless transgender support group meetings where transgender people shared: "only if you say x, y, and z about yourself will this doctor/clinic provide you care," or "only if you say x, y, and z about yourself will you get a letter from the doctor that will then allow you to change the gender on your driver's license." Since the Social Security office only recognizes male and female gender identities, I counsel people that using that setting to talk about their complex genderqueer identity may not be the most effective. [FN65]. Virtually every "Transgender 101" workshop I have attended has used this approach. See also Case, supra note 27. [FN66]. In my experience, the linear conception of gender also furthers divisions between communities. For instance, there are at times misunderstandings and difficult relations between butch women and FTMs, which, in my experience, is in part due to a linear conception of gender. Under a linear conception of gender, a question arises: are butch women more masculine or are FTMs more masculine? That is, where, on the line of gender, do we place FTMs relative to butch women? With this view of gender, competition arises--a competition of masculinity, a competition that does cause tensions. This competition is unnecessary. I know masculine FTMs, I know FTMs who are not very masculine, and I know butch women who are more masculine than most FTMs. [FN67]. Eve Sedgwick proposes a model of gender that shares some similarities with the gender galaxy. Sedgwick describes gender as a space created by three, four, or n number of lines. She points out rightly that there are many independent or unpredictably related gender categories. So, for instance, one can be feminine but not femme, or masculine but not butch. To account for the many ways in which people can be gendered, Sedgwick suggests a model of gender in which each gender term has its own axis in space. So, for instance, one's gender could be high on the masculinity axis and low on the butch axis. Importantly, Sedgwick's model is one in which masculinity and femininity are not linearly related to each other. The axis of femininity and the axis of masculinity are perpendicular to each other, in other words independent. If one is more feminine, one is not automatically less masculine. One's gender could be high on the masculinity axis and high on the femininity axis--one's gender can be gender-ful. Eve Kosofsky Sedgwick, "Gosh, Boy George, You Must Be Awfully Secure in Your Masculinity!", in Constructing Masculinity 11 (Maurice Berger et al. eds., 1995). [FN68]. The idea that the best gender to have is the most complicated one or the one that combines the most female and male characteristics in one person replaces one norm with another. In a world that tells us from day one who we should be and how we should be, choosing one's own gender, whether or not exactly the gender one was assigned at birth, is radical. [FN69]. Most of the United States still sees gender as binary and hierarchal. Thus, even if I see my gender as falling somewhere in the gender galaxy, many others will read my gender in a binary way and accordingly give or withhold privilege. See generally Bartky, supra note 38; Marilyn Frye, Politics of Reality: Essays in Feminist Theory (1983). The United States still operates on a hierarchized gender model. I do not want to invalidate that material reality in any way. But, one way to change that reality is to change how we view gender. It is harder to discriminate based on gender if there are a million non-hierarchical genders that could change at any moment. To discriminate based on gender, we need fairly discrete gender categories, and the fewer, the simpler, and the more easily recognizable the better. Having only two gender categories ("women" and "men") makes discrimination and oppression fairly simple: one category is seen as superior to the other, and one is given preferential treatment over the other. In the United States, we spend an enormous amount of energy making sure that we can tell into which of the two categories any person falls so that we can engage in preferential treatment. See id. at 17. If it is difficult to tell into which category a person falls or if people move from one category to another, it will be more difficult to discriminate based on gender. It will be more difficult to know against whom to discriminate. If we have an infinite number of categories, it is difficult to order them hierarchically--and so to discriminate. Sexism would have a more difficult time surviving in a gender galaxy. [FN70]. Thanks to Ellise Nicholson from whom I first heard this beautiful phrase--the gender galaxy. I shared my three-dimensional, non-linear, moving view of gender, and she said, "That's like a 'galaxy,' a 'gender galaxy."' I am not aware of anyone who has written about gender as three-dimensional, non-linear, non-static space. [FN71]. Female and male, though parts of the gender galaxy, take on a different meaning in that context. In the context of the binary gender system, female and male are all that exist and the ultimate norms. In the context of the gender galaxy, they are two among an infinite number of genders. [FN72]. Transgender people, as everyone, "are not simply expressing their innermost sense of self, but are re-establishing their relationship to the world." Ken Cooper, Practice with Transgendered Youth and Their Families, in Social Services with Transgender Youth 111, 113 (Gerald P. Mallon ed., Harrington Park Press 1999). [FN73]. For example, Judith Butler views gender as performative--a performativity that is expressive, physical, and done in relation to others. See, e.g., Judith Butler, Gender Trouble: Feminism and the Subversion of Identity (1990); Judith Butler, Imitation and Gender Insubordination, in Inside/Out: Lesbian Theories, Gay Theories (Diana Fuss ed., 1991). [FN74]. Though we cannot be other than ourselves or have a gender other than our own, we can present to the world a gender that is not our own and not defined by ourselves. From hearing transgender people speak about their experiences and from personal experience, presenting a gender to the world that is not one's own takes enormous energy, is exhausting, and keeps one from being fully, openly, and honestly present to other people and to the world (and to oneself). [FN75]. Currently, many people are not able to express themselves as they would like, due to sexism, transphobia, racism, our economic structure, and the very justified fear of losing one's job, losing one's family, being assaulted, and losing one's life. We do not yet live in a world where we can all express our genders freely and be ourselves. For examples of difficulties that transgender people face in expressing their gender identities, see supra notes 9-16 and accompanying text. [FN76]. See, e.g., Riki Anne Wilchins, Read My Lips: Sexual Subversion and the End of Gender 16 (1997) ("I have begun speaking simply of gender as a name for that system that punishes bodies for how they look."). Gender is all bad. Gender only punishes. Gender is a cage. Id. at 156. I do agree that the way we currently conceptualize and use gender is highly problematic: that there are only two options, that no one can choose their option, that there are hierarchies of power related to gender. Gender in and of itself, however, is not bad. [FN77]. For a criticism of race-blind politics, see Gary Peller, Race Consciousness, 1990 Duke L.J. 758 (1990). Though I am not implying that race and gender are the same, I would argue similarly against a gender-blind society as Peller argues against a race-blind society. [FN78]. Feminists who argue for the use of the sex-gender distinction view sex as related to biology and gender as related to culture--sex related to male and female, and gender related to masculine and feminine. See Case supra note 27, at 11; Valdes, supra note 28, at 21. This conceptualization of sex and gender, female and feminine, male and masculine, does have a positive effect. By separating female from feminine and male from masculine, we can envision masculine females and feminine males. We can envision non-stereotypical women and men. [FN79]. For more discussion on this point, particularly the emotion/reason and related body/mind split, see Carol Bigwood, Renaturalizing the Body (with the Help of Merleau-Ponty), 6 Hypatia 54 (1991) (arguing that all knowledge comes from or through our bodies); Rosi Braidotti, Patterns of Dissonance: A Study of Women in Contemporary Philosophy (Elizabeth Guild trans., Polity Press, 1991) (calling for a more embodied thought); Lorraine Code, Epistemic Responsibility (1987) (arguing that knowledge arose more out of particulars than universals); Vrinda Dalmiya & Linda Alcoff, Are "Old Wives"' Tales Justified?, in Feminist Epistemologies 217 (Linda Alcoff & Elizabeth Potter eds., 1993) (questioning the validity of seeing "more scientific" views, that is, views more aligned with "reason," as more valid); Frye, supra note 69, at 84 (showing how knowledge can come from emotion); Patricia S. Greenspan, Emotions and Reasons: An Inquiry into Emotional Justification (1988) (showing the importance of emotion in knowledge and reason); Lisa Heldke, Recipes for Theory Making, 3 Hypatia 15 (1988) (showing that theorizing, usually seen as reason, includes emotion, intuition, and particulars); Alison M. Jaggar, Love and Knowledge: Emotion in Feminist Epistemology, in Women, Knowledge, and Reality: Explorations in Feminist Philosophy 129 (Ann Garry & Marilyn Pearsall eds., Unwin Hyman 1989) (showing how our perceptions are inextricably intertwined with our emotions); Genevieve Lloyd, The Man of Reason: "Male" and "Female" in Western Philosophy (2d ed. 1984) (describing how historically "female" has been defined in opposition to "reason"); Evelyn Fox Keller, Feminism and Science in Women, Knowledge, and Reality, supra, at 175 (describing the importance of intuition and the body in reason); Phyllis Rooney, Recent Work in Feminist Discussions of Reason, 31 American Philosophical Quarterly 1 (1994) (describing the different forms that women are seen as or that are excluded from reason); Gail Stenstad, Anarchic Thinking, 3 Hypatia 87 (1988) (showing the value of ambiguity and incompleteness in forming knowledge). [FN80]. Wilchins, supra note 76, at 57. [FN81]. Greenberg, supra note 26, at 278. [FN82]. For instance, in chromosomes, one can have not only xy or xx, but also xxx, xxy, xxxy, xyy, xyyy, xyyyy, or xo. One can have two ovaries, two testes, one ovary and one testis, two ovotestes, or streak testes which function as neither One's external morphology can consist of a small clit, a large clit, a small penis, a large penis, both a penis and a vagina. One can have different combinations of internal morphology. Everyone has both testosterone and estrogen and there are endless combinations of relative amounts. Similarly there are endless combinations of phenotypical features (e.g. hair, breasts, etc.). Id. at 278-91. For frequency of particular physical conditions, see Melanie Blackless et al., How Sexually Dimorphic Are We? Review and Synthesis, 12 Am. J. Hum. Biology 151 (2000), available at http://www3.interscience.wiley.com/cgi-bin/fulltext/69504033/PDFSTART. [FN83]. For instance, one can have an xy chromosome and a testes and external female genitalia. Greenberg, supra note 26, at 273. [FN84]. I am not describing the enormous biological variety to naturalize transgender, to say that there is a natural basis for transgender experience. It is not those people whose genitalia fall into the intersex category that identify as third gender. Most intersex people identify as male or female. Some identify as transgender. Most transgender people were not labeled intersex at birth. See Emi Koyama, Introduction to Intersex Activism: A Guide for Gay, Lesbian, Bisexual, and Trans Allies (Intersex Society of North America 2001). Gender identification has nothing to do with genital configuration. [FN85]. Greenberg, supra note 26, at 272. [FN86]. See, e.g., M.T. v. J.T., 355 A.2d 204, 209-10 (N.J. Super. Ct. App. Div. 1976); Frances B. v. Mark B., 355 N.Y.S.2d 712, 717 (N.Y. 1974). [FN87]. See Dreger, supra note 84, at 26. [FN88]. Some doctors define penises as being 1 cm and above, some define them as 1.5 cm and above, some 2.5 cm and above. Dreger, supra note 84, at 26. See Jody Lynee Madeira, Law as a Reflection of Her/His-Story: Current Institutional Perceptions of, and Possibilities for, Protecting Transsexuals' Interests in Legal Determinations of Sex, 5 U. Pa. J. Const. L. 128, 132-36 (2002) (discussing the construction of the body and viewing the body as text). [FN89]. See supra note 88. [FN90]. There is limited agreement on how many people are intersex. First, it is difficult to get an exact number because there is a lot of shame around being intersex, so many intersex people do not disclose that they are intersex. Greenberg, supra note 26, at 268 n.9. [FN91]. In the United States, each day, five infants are subjected to unconsented genital surgery. Cheryl Chase, Address at Creating Change, Annual Conference of the Gay and Lesbian Task Force (Nov. 2001). For more information on the prevalence of performing surgery on infant's genitalia, see Greenberg, supra note 26, at 271. [FN92]. S.F. Human Rights Comm'n Hearing, May 27, 2004, at http:// www.sfgov.org/site/sfhumanrights_page.asp?id=24950; Pediatric Assignment of Sex: A Critical Reappraisal (Stephen A. Zderic et al. eds., 2002). [FN93]. This example is Cheryl Chase's. Chase, supra note at 91. [FN94]. By calling sex a cultural construct I do not intend to minimize how this construct affects all of us every day. The construct sex creates a cultural reality, and its normative affects are all too real. Those who are seen as intersex are mutilated at birth in the name of this construct to keep alive the cultural belief that there are only two natural sexes. Those who are so lucky as to not get labeled intersex at birth are still labeled boy or girl, a label that will affect what color shirt one will wear on day one, the types of socks/hose one will wear at job interviews, to what jobs one will have easy access, how one will perceive and live and move in one's body, what emotions one can acceptably express, whether one's assertiveness will be seen as aggressive, the level of safety one feels walking alone at night, what bathroom one will go to, how one is treated by teachers, strangers, parents, how one is expected to interact, and so on. Sex--the label one gets at birth, without one's consent, based on a quick measurement of one body part--is a label that will affect every single aspect of every day of one's life. Sex is a cultural construct that creates our social reality. The construct of sex sets in motion and justifies an enormous cultural apparatus that throws all human beings into one of two tracks. And this cultural construct is made to appear natural--so as to seem unquestionable and inevitable. For a discussion on the apparatus that maintains and reinforces our sex, see, for example, Frye, supra note 69, and Bartky, supra note 38. [FN95]. Judith Butler was the first to unpack this relation between sex and gender--i.e., that sex is seen as the natural, objective grounding for a cultural gender. Seeing sex as natural and objective justifies the existence of gender norms. See supra note 73. [FN96]. Genitalia are "absolute truth." See discussion supra Part II.A. This belief is also not foreign to the law. For instance, many states require genital surgery to change the gender marker on one's identification. For state laws on birth certificate gender changes, see supra note 62. Phil Duran of OutFront Minnesota had an excellent response regarding Minnesota's requirement of genital surgery to change the gender marker on one's driver's license. He asked Minnesota Driver and Vehicle Services (DVS) why it put a picture of people's faces and not of people's genitalia on the driver's license if genitalia are so critical: [FN97]. It is very rare that self-identification is recognized in the law; the law ordinarily requires some form of medical intervention to "validate" the person's gender identity. See supra note 5. For a good exception, see Compliance Guidelines, supra note 64. [FN98]. See, e.g., Sherry Ortner, Is Female to Male as Nature Is to Culture?, in Women and Values: Readings in Recent Feminist Philosophy (Marilyn Pearsall ed., 1986). [FN99]. Further, in most of life, actual genitalia do not matter. In our day to day life, we do not read the gender of our co-workers, our friends, or the people we pass on the street by looking at their actual genitalia. We read gender and then assume genitalia. Have you seen every person's genitalia whose gender you know? Thanks to Jody Marksamer for this observation. [FN100]. Whenever there is a conceptualization, such as the sex-gender distinction, that aids a power differential (by making it seem natural, for instance), questions arise. Who benefits from that conceptualization? And, what keeps that conceptualization and power differential in place? See, e.g., Friedrich Nietzsche, Beyond Good and Evil: A Prelude to a Philosophy of the Future (Walter Kaufman trans., 1989); Michel Foucault, The History of Sexuality: An Introduction (Robert Hurley trans., 1990). [FN101]. Who benefits from a world of binary, genitally based, unquestioned gender? Certainly, people who do not have binary or genitally based genders--or who question gender--do not benefit. See supra notes 9-16 and accompanying text. People who present according to traditional gender norms have a relative benefit. Men do benefit. Sexism and the preferential allocation of resources to men can exist more easily if there are few and easily recognizable genders that cannot be questioned. See, e.g., Frye, supra note 69, at 1-40 (describing how easily recognizeable genders aid the oppression of women). [FN102]. Consent: obviously a one day old child cannot consent, but parents can. This consent can be meaningful if the parents are educated on intersex issues, as presented by intersex organizations, rather than as presented by the medical establishment, before making that decision. Doctors should provide information on real medical issues and dangers that might arise if the child undergoes surgery. Doctors should show videotapes provided by ISNA. Telling parents that the child must undergo surgery to lead a productive happy life is a misrepresentation and does not leave parents with a meaningful, informed ability to choose. And if there is no true medical emergency, there is always the option of letting the child decide themselves when they are older. See Kishka-Kamari Ford, "First, Do No Harm"--The Fiction of Legal Parental Consent to Genital-Normalizing Surgery on Intersexed Infants, 19 Yale L. & Pol'y Rev. 469, 474 (2001) (arguing that parents are not given enough information by doctors to give legal consent to their child's surgery); Glenn M. Burton, General Discussion of Legal Issues Affecting Sexual Assignment of Intersex Infants Born with Ambiguous Genitalia, at http:// www.isna.org/node/196 (last visited Apr. 29, 2005). [FN103]. I dislike all versions of this definition: "Transmen have female bodies and male identifications," "Transwomen are male born people who feel they are women," "Transpeople have genitalia of one sex and the mind of another," "FTMs are women with body ambivalence who cut off their tits and "turn into men." Michelle Tea, Boogie Dykes, S.F. Bay Guardian, Jan. 31, 2001, at 26. See also all cases cited in Part III.C. [FN104]. James Green puts it well: when we separate sex from gender, expression from biology, "[w]hen we use terms like sex 'roles' or gender 'roles,' our language subtly conditions us to doubt the authenticity of a person's self-expression." D.E. Butler (original draft by Jamison Green), Training and Information Bulletin, Jan. 15, 2000, available by contacting www.jamisongreen.com. [FN105]. See, e.g., Wendy Melillo, D.C. Fire Officials to Reinvestigate Transvestite's Death, Wash. Post, Dec. 5, 1995, at B2 (referring to Tyra Hunter, who was a transsexual woman, as a man who is a transvestite, using Tyra's old name and male pronouns. Implied in the piece is that Tyra is really a man, that Tyra is not who Tyra says she is.). After the recent murder of the transgender woman Gwen Araujo, the local papers and A.P. Press initially referred to Gwen as "Eddie" and used the male pronouns to such an extent that the Gay and Lesbian Alliance Against Defamation (GLAAD) issued an Action Alert. GLAAD, Urge Respectful, Accurate Coverage of Gwen Araujo (Nov. 19, 2002), at http://www.glaad.org/action/alerts_detail.php?id=3110. See also Tea, supra note 103 (FTMs are really women who cut off their breasts). Also, please see all cases cited in Part III.C for similar definitions. [FN106]. See generally Wilchins, supra note 46. [FN107]. I am not suggesting a conspiracy theory, that there is a group of people who conspire to give power to doctors. Yet, individuals and groups can create, reinforce, or maintain power dynamics. For instance, The Harry Benjamin International Gender Dysphoria Association (HBIGDA) creates the 'Standards of Care'--for doctors' treatment of transgender people. The 'Standards of Care' outline who is deemed a real transgender person and who is not, who gets care and who does not. The Standards give doctors the power to make that determination. The Standards, though evolving, are still largely binary. And, HBIGDA board members, who create the Standards, are largely non-transgender physicians. These individual physicians do have enormous power and reinforce the power that physicians have over transgender people. See The Harry Benjamin Int'l Gender Dysphoria Ass'n, supra note 52. [FN108]. Doe v. Yunits, 15 Mass. L. Rep. 278, 282 (Mass. Super. Ct. Feb. 26, 2001). [FN109]. See discussion supra Part I.A.3. [FN110]. See, e.g., Lee supra note 7, at B1. [FN111]. Zach Calef, Double Standards in Reactions to Rape, Iowa State Daily, Online Ed., Oct. 24, 2002, at http:// www.iowastatedaily.com/vnews/display.v/ART/2002/10/24/3db7765f45381?in_ archive=1. [FN112]. See Smith & St. Pierre, supra note 8. [FN113]. See supra note 32. Questioning transgender people's validity and the validity of transgender people's self-identified genders is not uncommon, and occurs even in law review articles. For instance, Ronald Garet, in his article, asks the question of how the lives and actions of transgender people should be regarded morally. For instance, is it moral for a father to transition? See Garet, supra note 5, at 143-45. It is interesting that Garet never asks himself whether or not it is moral for him to be himself, to have the gender he has, to make the gender choices he makes. Because his gender choices are more in line with his birth-assigned gender, i.e. "truth," he sees himself as immune from these questions. It is only transgender people who are potential frauds and immoral agents. I find the question of whether or not it is moral for transgender people to be themselves extraordinarily insulting. I also question Garet's familiarity with actual transgender people. He posits that perhaps transgender are only transgender because they have narrow views of gender. For instance, he suggests that perhaps transgender women transition because they believe in sexist gender norms, because they cannot conceive of themselves as feminine men. Id. at 182-84. How does this question apply to a butch lesbian transgender woman? To a not-masculine transgender man? To a feminine transwoman? Being a feminine woman is a very different gender location than being a feminine man. Garet's hypothesis relies on a limited knowledge of the transgender communities and a limited view of gender possibilities. [FN114]. A word on disclosure of doctor-assigned gender. I am openly transgender, but, I do not always wear it on my forehead. Sometimes I run into situations where people tell me that I should have told them earlier that I am transgender, and that by not doing so, I deceived them. Deception. Why do I have any more obligation to make that disclosure than a non-transgender person? One person with whom I was flirting told me that he was horrified because he thought that I was just a "cute gay guy." In retrospect, I should have responded by saying that I, too, was horrified, for I had assumed he was "just a cute queer tranny boy," and how dare he not disclose his non-trans status right up front. Why is the onus only on transgender people to disclose their birth-assigned gender? I am not a fraud. I am more true to myself than I have ever been. If someone else assumes by looking at me that I have a certain birth-assigned gender or that I have a certain shape/size of genitalia, that is that person's issue, that person's stereotyping, narrow, and incorrect belief about what it means to be female, male, third gender, trans, genderqueer, and so on. [FN115]. I do not like to see myself as having a body and mind that do not match. To be honest, I cannot conceptualize it. My body and my mind are part of me, inseparable. Everyone is a whole person--a whole embodied thoughtful person--a complex person. Just because I am gender non-conforming does not mean that something does not match. I have a gender non-conforming body and a gender non-conforming mind all wrapped in up in one gender non-conforming me. To separate out one from the other makes it feel as if part of me is not really part of me, as if something is being ripped away from me--and the physical sensation I have as I think of that is nausea. [FN116]. Another conceptualization that relies on the sex-gender distinction is 'bio-boy.' See, e.g., Butch-Femme.com, Reinforcing the Stereotype, at http://www.butch-femme.com/portal/forums/printthread.php?threadid=4663 (last visited Feb. 19, 2005); Transgender Alphabet Soup, at http://users4.ev1.net/~ taragem/terms.htm (last visited Apr. 5, 2005). [FN117]. There are transgender people who do conceptualize themselves as having a mismatch of body and mind. What is key is that the transperson defines their experience themselves and that it is not imposed by a doctor under a purported objectivity and truth. [FN118]. I am not aware of any writing about the effect that a mind-body split or a split of the body has specifically on transgender people. Eating disorders are one possible effect of being dissociated from one's body. See, e.g., Susan Bordo, Unbearable Weight: Feminism, Western Culture, and the Body (1993). For other pieces on the harms of the mind-body split, see, for example, Steven Greer, Healing the Mind/Body Split: Bringing the Patient Back into Oncology, 2 Integrative Cancer Therapies 5 (2003), at http:// ict.sagepub.com/cgi/content/abstract/2/1/5; Patrick Bracken & Philip Thomas, Time to Move Beyond the Mind-Body Split, 325 Brit. Med. J. 1433 (2002), at http://bmj.bmjjournals.com/cgi/content/full/325/7378/1433. [FN119]. As Judith Butler argues, sex/gender is "the discursive/cultural means by which 'sexed nature' or 'a natural sex' is produced and established as 'prediscursive'." Butler, supra note 73, at 7. "[G]ender is a kind of imitation for which there is no original." Butler, supra note 73, at 21 (emphasis omitted). [FN120]. "Sex is fucking, everything else is gender." Doris Rita Alfonso, Imagining Sex in Space: How Sexual Difference Acquires Ontological Import in Plato's Timaeus 1, 173 (2002) (dissertation, State University of New York at Stony Brook); Shannon Bell, Kate Bornstein: A Transgender Transsexual Postmodern Tiresias (Oct. 20, 1994), at http://www.ctheory.net/text_file.asp? pick=61 (quoting Kate Bornstein). Sex is fucking, everything else is the gender galaxy. [FN121]. If we do not acknowledge the sex-gender distinction as a valid one how does that affect women's ability to organize and work for women's rights? It is helpful since it dethrones the idea that there is a biological, and objective, basis to sex. See Franke, supra note 29, at 3.
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