Searching through old boxes of briefs last week, I came upon Ann Hopkin’s brief to the Supreme Court, filed by her attorneys James H. Heller and Douglas B. Huron in 1988. For those who don’t have access to the subscription databases (and it may not even be there) or to an SC depository library, here it is. Price Waterhouse v. Hopkins, Brief for Respondent, June 1988. The scanning job is not perfect, so be forewarned.
(This is NOT apropos of the moment–this was written about the Kavanaugh hearings. But I wanted to gather my thoughts from a Facebook post and thread to have them in one place. I’m working this weekend on a piece about Trump and the politics of sex classification.)
You know one thing the world doesn’t need right now? Holier-than-thou trans men soulfully mansplaining to cis men about the #metoo movement. For those of us binary trans masculine folks, this is not the moment to usurp women’s voices.
Not only does this sort of posturing suggest trans men are feminist angels, posting such nonsense seems really to be about the expectation that we should not only thanked–which is bad enough–but even praised for not being assholes. And what is more feminist-bro behavior than that?
Trans men taking advantage of this moment to let the world know that we aren’t like other men, that we’re some sort of exception, are in the minority, thankfully. But coming across it in social media is still cringe-worthy. If you’re white and pass, you can’t transition and then pretend you don’t have the social power that masculinity confers. Let’s listen to the people who lack that social power. Take a seat, boys.
Why is there so little talk of boycotting anti-abortion states? Tim Cook, Mark Zuckerberg and other CEOS appear to have no hesitation calling anti-LGBT laws “bad for our employees and bad for business.” So why are they so silent on ant-abortion legislation? (SF Gate has a useful summary of anti-LGBT legislation. And for state anti-abortion initiatives the Guttmacher Institute has a page that describes what these bills and laws attempt to regulate or ban.) The SF Gate list points out how many of the anti-LGBT bills (e.g. Arkansas, Georgia, Indiana, Wyoming) failed to passed or were revised because of threats from businesses. The Human Rights Campaign suggests it’s because corporate employee resource groups for women must not be be pushing the issue, unlike their LGBT counterparts. But that explanation can’t be the whole story.
(Warning–this is a longish read, working out some ideas for the book and needed to imagine an actual audience. I can’t provide the definitive answer to the question of how support for LGBT rights have outpaced abortion rights or women’s rights generally. But I’m working out a few ideas on how the concept of transgender figures in all of this. This is still rough, comments welcome. Part of this is based on a talk I gave at the CUNY Graduate Center, “Are Transgender Politics Feminist?” in November.)
In the last decade, movements for transgender equality appear to have advanced with astonishing speed, while other issues of concern to women’s movements have largely stalled, either making little progress (equal pay) or suffering real setbacks (abortion access). From policy reforms to public opinion trends, it seems that the situation has changed faster, and in a more positive direction, for trans people than for women. (And yes, of course I include trans women in the category of “women.”) This apparent gap may be exacerbated in the United States: at the conclusion of the culture wars of the last forty years, the almost inseparable bond between movements for sexual and gender freedom that marked liberationist discourse of the 1970s has been torn asunder, reconstituted through the logic of an identity politics that affirms the demands for recognition of sexual and gender minorities but finds the misogyny that still structures all women’s lives less intelligible, outside the scope of the liberal project of inclusion. One 2015 poll (PDF), for example, found that 72 percent of the millennial generation in the United States favor laws banning discrimination against transgender people—a proportion very close to the 73 percent who support protections for gay and lesbian people. But only 55 percent of this generation, born between 1980 and 2000, say abortion should be legal in all (22 percent) or some (33 percent) cases.
Given this divergence in public opinion on LGBT and abortion access, then it’s no wonder that businesses are silent on abortion rights (not to mention redistributionist demands for reproductive justice, which really aren’t ” business friendly”). But how did we get to this point? What happened? It’s as if second-wave feminism was surpassed by the next wave before it could realize its goals: eliminating or radically reorganizing the economic structures (targeted by Marxist and socialist feminists) and institutions and norms (targeted by cultural and liberal feminists) responsible for the subjugation of women. But burdened internally by the racial and class hierarchies it reproduced, limited by an analytical framework that invariably prioritized the workings of the sex/gender binary over other oppressive processes, and confronted externally by emerging neoliberal technologies of governance that could accommodate new articulations of social difference without having to modify the fundamental algorithms for the distribution of inequality, second-wave feminism was not equipped to succeed. Certainly, the long-term transformative potential of the sex positive, trans-affirming, more racially aware and engaged, and more politically ecumenical third/fourth wave remains unknown, but there is some promise in the ways it has departed from the various grand narratives of the European Enlightenment, which include the third/fourthwave’s refusal to accede to the ontological priority of any particular group; its capacity to make visible the effects of power on vastly different scales, from the molecular to the global; and its rejection of the primacy of traditional political forms (the party, legal institutions) in favor of situating resistance in cultural moments and provisional events.
A little background on what “transgender” has come to mean: By the late 1990s, the division between what Jay Prosser called the transsexual who “literalizes” gender, and the transgender who “deliteralizes” has been resolved: “transgender” emerged as the conceptual victor. Its very plasticity meant it could accommodate specificity of all kinds—including “wrong body” transsexuals–under the abstract construction of gender non-conformity. At this point, the notion of a “transgender umbrella” emerges as an educational device to represent (or to contain) all the many different forms of gender non-conformity extant at any one time and in any one place. As Ben Singer recounts, one of its earliest documented sightings was in the form of a “a hand drawn umbrella with an open canopy stretched over a now dated set of terms: “crossdresser (‘drag’),” “transvestic fetishist,” “transvestite,” “transgenderist,” “’transsexual” and “man/woman.” Since then the term “transgender” imagined as an umbrella has never stopped expanding, and generates a seemingly endless proliferation of practices and identities. Susan Stryker explains that transgender now stands for “any and all kinds of variation from gender norms and expectations.”
The political function of the transgender umbrella was to aggregate all these disparate ways of being together in order to constitute a group organized around a coherent politics of identity that could become a political force. And in that way, it has been very successful. But “transgender umbrella” obscured and continues to obscure fundamental disagreements between those it shelters about sex, about gender and the gender binary, about transition, the ontological status of the body, the fixity of gender, differential vulnerabilities based on race and class. In short, there are lots of noises coming out from underneath the transgender umbrella–it’s not at all harmonious, it’s actually quite cacophonous if you’re listening.
The point of this very abridged genealogy of “transgender” is show how the term found an intellectual foundation in the trends in what became the dominant tendency in US feminist theory. Just as transgender superseded transsexual (by absorbing it), the notion of gender won out over the conceptual frame of sex difference. Rather than seeing gender/sex as a binary structure defined by the Symbolic, as in French psychoanalysis or by the somatic, as in American radical feminists, what was then called postmodern feminism has, as Rita Felski put it in 1996, “sought in different ways to break out of the prisonhouse of gender by reconceptualizing masculinity and femininity as performative, unstable, and multiply determined practices.” The fixed sexual binary was replaced by what people took to be gender fluidity and multiplicity, endlessly proliferating gender differences. And of course, with that approach, the binary became a continuum, eventually an embarrassment, and sex was absorbed into gender (much as transsexual was uneasily absorbed into transgender). Through all this somehow transgender maintained its dual use. As a term of identity politics, it represents a group of people defined by gender non-conformity. In theory, on the frontiers of gender activism, it can signal the fundamental instability of any kind of gender practice, conforming or not. (I had not realized until just now when I looked it up that “dual use” originated in the Cold War to describe technologies that can be used for both war-making and peace-making.)
Much was gained with this move away from the centrality of the sex/gender binary. The sexual difference framework established that binary as universal, ahistorical, and primary, and as a consequence analyses focused on race, class, and other intersectional social locations were pretty much impossible. One could focus on the social and material determinants of differential vulnerabilities of actual people rather than just re-read Lacan or Mary Daly. Gender provided a theoretical home for queer and trans gender subjects that sexual difference mostly could not.
But one crucial tool was lost: the emphasis on asymmetry. A gender theory, a transgender umbrella, that transcended the binary, that observed and enabled a multiplicity of differences, could no longer say much about women’s subordination, in the parlance of the second wave. As Rosi Braidotti asked Judith Butler in 1994, a few years after Gender Trouble was published and had begun to change everything, “Whatever happened to sexual difference understood as the dissymmetrical power relations between the sexed subjects?’”
What are the consequences of this shift away from the gender binary and toward gender pluralism? For one thing, misogyny begins to disappear from our political lexicon. As I wrote in a post on “disappearing women” last year, while it’s certainly right to demand that providers of reproductive health services use trans-inclusive language, we lose important historical and analytical frameworks for understanding the restriction and possible ending of abortion as part of a war against women.
With the rejection of a binary organized around sexual difference, and the concomitant inability to acknowledge asymmetrical gendered power relations, we no longer have the ability to examine how gender still matters in the unjust distribution of resources, how one’s position toward the feminine end of the continuum (if not the binary) still has effects. Instead, the agenda becomes the demand that all forms of gender difference be included and recognized. For all those many kinds of people under the transgender umbrella, politics focuses now on all the ways in which gender can be remixed: from the now traditional male-to-female and female-to-male transition trajectories to genderqueer to non-binary.
That is all well and good, it’s necessary, and important and that has been much of what I’ve focused on in my earlier work. Indeed, at earlier points in my own intellectual history, I’ve suggested gender pluralism should be a or the goal of trans movements for equality. I saw it as a move away from identity-bound rights discourse and made room for both a critique of the medical model (in which transsexuality is seen as merely reinscribing gender) and a critique of the critique (in which transgender as it’s been absorbed into queer theoretical projects becomes the new revolutionary class). I thought of gender pluralism as an arrangement in which transsexual and genderqueer narratives would not cancel each other out.
My approach was, I have to say, necessarily liberal in that it centered the quests for recognition of trans communities, sub-communities, genres. Now, however, it’s become clear that this sort of gender pluralism and the reconstructed autonomy that attends it resonate deeply with a neoliberal ethos that has begun to value gender “diverse” people as a potentially valuable forms of human capital. In this vein, Jasbir Puar describes (PDF) a new transnormative body, one “predicated not on passing but on ‘piecing,’ galvanized through mobility, transformation, regeneration, flexibility, and the creative concocting of the body.” In the new metrics of diversity, no one under the transgender umbrella, regardless of the form their gender non-conformity takes, should be locked out of the market. As a form of human capital, gender non-conformity is something we can attend to, invest in, turn into a commodity.
At one point, matters of recognition for trans people and feminist projects were more deeply linked, though few outside trans communities understood this early on. Longtime trans activist Phyllis Frye certainly did–though her arguments about the importance of transgender quests for recognition to the same-sex marriage debate were pretty much ignored by the gay rights impact litigators who did not want the stigma attached to transsexuals to contaminate the marriage equality movement. Julie Greenberg’s important 2000 article, “When is a man a man, and when is a woman a woman,” explained that the transsexual marriage cases could have “a profound effect on the rights of gays and lesbians to marry.” Gender has long been a mechanism for the distribution of resources, rights, and obligations: coverture, property and inheritance rights, military service, marriage and the benefits that come with it.
But for gender to do that work, agencies need systems of sex classification, which are effectively metrics for sex re-classification. States couldn’t ban same-sex marriage, Congress couldn’t pass the Defense of Marriage Act, if there were no method for deciding who was a man and who was a woman. Marriage determines parenting rights, inheritance, access to social security rights, and many other things. Distinguishing between an opposite-sex marriage and a same-sex marriage depends on the power of state actors to make sex classifications, as the trans marriage litigation makes very clear, which I talk about in another chapter. If a trans person’s new gender was to be officially recognized a state agency, the “transition” had better be permanent, trans advocates were told again and again. And surgery was assumed to guarantee permanence. Lisa Jean Moore and I wrote about the presumed importance of permanence in a 2009 article, “‘We Won’t Know Who You Are’: Contesting Sex Designations on New York City Birth Certificates.” (In case you’re wondering, I use “sex” to refer to M/F classifications backed by the force of law; I use gender to refer to identities, norms, social arrangements, etc.)
As gender becomes less and less a legal mechanism for distributing rights and resources, transgender issues get de-coupled from feminism, although few saw that connection when it mattered most. Now that same-sex marriage is legal in all fifty states, systems for sex classification are beginning to matter less and less–at least for the purposes of marriage. For other state projects, like incarceration, sex classification still matters a great deal. But, overall, the general trend is toward more recognition for more people: sex re-classification systems are beginning to move away from requiring surgery or other body modifications. We’re not there yet, but at this rate of change it’s possible to envision the coming of a gender pluralism recognized by states and valued by markets.
In the move to gender pluralism, to gendered multiplicities of becoming, the sex/gender binary is necessarily displaced by the narrow legal construction of gender neutrality. As a result, even situations that aren’t at all gender neutral as treated as if they were. For example, GLBT legal advocates initially did not include any trans women as named plaintiffs in their lawsuit challenging North Carolina’s HB2, which was passed in part because of the panic surrounding the idea of trans women using women’s bathrooms. As I wrote in a post about the new bathroom trans panic last month, leaving them out [in favor of two trans men], the legal groups skirted around the crux of the controversy. That may be a reasonable legal strategy, but it’s not a political response to a raging conservative anti-trans agenda. Nor is it a response to the violence wrought upon trans women. Some of that violence is made possible by the same ideas about gender that make the trans panic defense for homicide seem reasonable.” Here the the legal intervention into the bathroom rule was based on the abstract category of “transgender.” This case shows how gender neutrality projects the too analytically neat assumptions of the legal sphere onto the social, and makes it difficult if not impossible to challenge the misogyny that trans women encounter and that underwrote the rule in the first place.
I’m not suggesting that we rehabilitate the sexual difference framework in its entirety. Any conceptual framework, from the sex/gender binary to the transgender-cisgender dichotomy, risks ossification, risks turning what had been a provisional and generative idea into a methodological imperative that over time obscures more than it reveals. Plus I am too old a dog to start reading Lacan now, and I’m not interested in going back to the radical feminists or, heaven forbid, trying to convince TERFS of anything. But I do think that, in particular moments and circumstances, we need a transgender feminist approach that is not gender-neutral–that dares to identify asymmetry when it sees it.