Epistemic Injustice and the Construction of Transgender Legal Subjects (original) (raw)
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Transgender Intrasectionality: Rethinking Anti-Discrimination Law and Litigation
This article will puts a gender variant perspective on anti-discrimination law and litigation. It analyze trans right claims by synthesizing queer theory’s concept of performativity and critical race theory’s concept of intersectionality, to offer a new and original concept of legal “intrasectionality”, with far-reaching implications for rights-based litigation. Instead of considering how “legal men” are treated different than “legal women”, this article will ask whether a given gender variant individual is treated differently than one whose gender performance coheres to social standards. These inquiries into the intrasectionality of the sex category with respect to equality will set the stage for the claim that anti-discrimination law and litigation intertwines with performativity.
The Transgender Rights Imaginary
Routledge eBooks, 2016
ABSTRACT The modern regulatory project of sex classification is currently in crisis. Contestations over the legal meaning of “sex” — manifested not only in the incommensurate outcomes of different cases but in inconsistent rulings in the same case as it moves through the judiciary from lower to appellate courts — are stark illustrations of the clashes taking place in multiple social arenas over the inability of a birth sex determination to secure a person’s gender. In the face of this epistemic classification crisis, just what stance should transgender rights advocates adopt in challenging state definitions of sex and gender that classify people based on the sex assigned at birth? Should the state base legal sex assignment on reassigned sex rather than the sex assigned at birth, or on gender identity rather than “biological” sex? Should the state’s ability to police the relationship between one’s body and one’s gender be challenged? What role should medical discourse and expert knowledge play in furthering the cause of transgender rights? How should we negotiate the tensions between an identity politics movement that seeks primarily to amend the definitions of the binary sex classification scheme and the larger goal of disestablishing sex as a meaningful legal category which distributes rights and resources unequally? I argue that the very different goals of working to dismantle gender as a coherent legal concept and working to expand gender to include trans people should not be seen as an either–or proposition. In thinking about how to frame the goals of rights claims made on behalf of transgender people, I suggest that transgender rights advocates can learn much from the work done by Critical Race Theorists. I argue that it is a mistake to see the goals of defending gender as a coherent legal category and “disestablishing” as a zero-sum calculus. The fact that organic “common sense” notions about gender underlie both negative and positive outcomes in many transgender rights cases reveals that the social and legal imagination of the meaning of gender is already being expanded.Instead, I suggest the solution is not to try find the “one perfect theory” that would make sense of all these contradictory state constructions of sex, gender, and the relationship between them. Instead, we should, as a movement, be celebrating the incoherencies between them even as we continue to pursue rights claims in the here and now by invoking context-specific useful constructions of gender definition. This essay is part of a larger book project, The United States of Gender, (forthcoming from NYU) that investigates state constructions of legal sex.
U. Pa. J. Const. L., 2002
This case involves the most basic of questions. When is a man a man, and when is a woman a woman? Every schoolchild, even of tender years, is confident he or she can tell the difference, especially if the person is wearing no clothes. These are observations that each of us makes early in life and, in most cases, continue to have more than a passing interest in for the rest of our lives. It is one of the more pleasant mysteries. The deeper philosophical (and now legal) question is: can a physician change the gender of a person with a scalpel, drugs and counseling, or is a person's gender immutably fixed by our Creator at birth?'
University of Pennsylvania Journal of Constitutional Law, 2002
Deconstructing the social and legal constructions of sex and sexual identity is crucial to explicating how transsexuals’ sexuality has limited their constitutional rights. This paper will analyze sex and sexual identity in a critical manner to clarify the complex relationship between these social and legal constructions; only after explicating that relationship is it possible to uncover how that relationship should be articulated to best further equity and justice and simultaneously gain transsexuals basic constitutional freedoms, such as the right to marry, that stem from the liberty to identify their own sex. The realization of such constitutional rights is an important and essential step to ending animus against transsexuals, who are marginalized through discrimination and prejudice or victimized through violent acts or hate speech simply because their sexual status is perceived as “deviant.”
A Bare Desire to Harm: Transgender People and the Equal Protection Clause
Boston College Law Review, 2015
The U.S. Supreme Court’s decision in Obergefell v. Hodges establishing marriage equality for same-sex couples marks a major shift in recognizing gay, lesbian, and bisexual people as a central part of the fabric of American society. Obergefell also marks the passing of the torch from “LGB” to “T”; the next civil rights frontier belongs to transgender people, for whom key barriers still remain. In January 2015, a transgender woman filed an equal protection challenge to a provision of the Americans with Disabilities Act (“ADA”), which explicitly excludes several medical conditions closely associated with transgender people. In support of this challenge, lawyers for the plaintiff (and co-authors of this Article) advance a novel argument: transgender people are a “suspect” or “quasi-suspect” class entitled to heightened scrutiny. The authors further argue that the ADA’s transgender exclusions are unconstitutional no matter what level of scrutiny applies because moral animus against trans...
Chapter 1 - The Transgender Tipping Point
This thesis offers a gender variant perspective on Anti-Discrimination legislation and litigation. Using queer theory, feminist legal theory and critical race theory, this thesis analyzes current debates within the trans movement regarding the use of rights based litigation and the fight for inclusion. I argue that gender variant people’s exclusion from resources and opportunities is inextricably linked, legally and affectively, to gender performance. I will show how performative aspects of the law can be brought forward by applying an “intrasectional” analysis of the protected classes relating to gender variant people within anti-discrimination law and litigation (ADL), and set the stage for the claim that ADL more broadly is intertwined with performativity. Reading the notion of performativity into legal analysis, this thesis suggests the possibility of strategic use of the existing legal rights as an instrument for change.
Experiencing “epistemic injustice” within transgender healthcare
Sexuality, Gender & Policy, 2023
In this brief report, the author analyzes, “Limiting Transgender Health”, by Reese Kelly and Sonny Nordmarken, and “Whose Feminism Is It Anyways”, by Emi Koyama, and put them in dialogue with a pivotal feminist book, Epistemic Injustice by Miranda Fricker to explore how microaggressions and transphobic experiences are epistemic injustices performed against trans‐identifying people.
Including Transgender Identities in Natural Law
Ergo an Open Access Journal of Philosophy
There is an emerging consensus within Natural Law that explains transgender identity as an “embodied misunderstanding.” The basic line of argument is that our sexual identity as male or female refers to our possible reproductive roles of begetting or conceiving. Since these two possibilities are determined early on by the presence or absence of a Y chromosome, our sexual identity cannot be changed or reassigned. I develop an argument from analogy, comparing gender and language, to show that this consensus is premature. Language and gender imbue our body with further social meaning and so, I conclude, that just as we can learn multiple languages, so too can we learn multiple genders. Since language and gender each constitutively contribute to our wellbeing as a “second nature,” I argue against this consensus to show that the reason people who are transgender struggle to flourish is not because of a “troubled trans psyche,” but because there are conceptual, interpersonal, and institut...